Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA502645
`ESTTA Tracking number:
`10/29/2012
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91207075
`Plaintiff
`Omni Enviro, LLC
`Defendant
`Quantum Biotek Pty Ltd
`
`Proceeding.
`Applicant
`
`Other Party
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Omni
`Enviro, LLC hereby requests suspension of this proceeding pending a final determination of the civil action.
`Trademark Rule 2.117.
`Omni Enviro, LLC has secured the express consent of all other parties to this proceeding for the suspension
`and resetting of dates requested herein.
`Omni Enviro, LLC has provided an e-mail address herewith for itself and for the opposing party so that any
`order on this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`Respectfully submitted,
`/DNewton/
`Dawn Newton
`dnewton@fablaw.com,srenner@fablaw.com
`jcbaum@owe.com
`10/29/2012
`
`

`
`In the United States Patent and Trademark Office
`
`Before the Trademark Trial and Appeal Board
`
`Opposition No.:91207075
`
`In the Matter of Serial No. 85/502607
`
`}
`}
`}
`}
`}
`
`} }
`
`Omni Enviro, LLC,
`-
`
`Opposer,
`
`v.
`»
`Quantum Biotek Pty Ltd
`Applicant.
`
`MOTION TO SUSPEND PROCEEDING IN VIEW OF PENDING CIVIL ACTION
`PURSUANT TO TRADEMARK RULE 2.1 17(a)
`
`Opposer, Omni Enviro, LLC, hereby moves for suspension of these proceedings
`1.
`pursuant to Trademark Rule 2.117(a), 37 C.F.R. §2.117(a).
`
`In support of this motion, Opposer submits herewith" a copy of a Complaint filed
`2.
`on April 11, 2012, by Quantum Biotek Pty Ltd against Michael Jenzeh, Stefanie Jenzeh,
`and Omni Enviro LLC in the United States District Court Northern District of California
`identified as Civil Action No. CV 12 1809.
`.
`A
`
`In support of this motion, Opposer submits herewith a copy of Counterclaim of
`3.
`Michael Jenzeh, Stefanie Jenzeh, and On1ni Enviro LLC filed July 10, 2012, in the
`United States District Court Northern District of California identified as Civil Action No.
`CV 12 1809 "as referenced above.
`
`This suit is based on trademark infringement and related state law claims and
`4.
`seeks money damages and a permanent injunction.
`
`10/29/12 (28566) #477695.2
`
`

`
`In View of the fact that this pending civil action involves the same issues which
`5.
`are involved in this proceeding, Opposer believes that the determination of these issues
`will be dispositive of this proceeding. Opposer, therefore, requests suspension of these
`proceedings pending determination of the civil action pursuant to Trademark Rule
`2.1l7(a), 37 C.F. R. § 2.1 17(a).
`
`On October 29, 2012 in a telephone call with Opp0ser's Attorney, Applicant's
`6.
`Attorney stipulated to the stay requested by this Motion.
`
`Respectfully submitted, -
`
`FITZGERALD ABBOTT & BEARDSLEY LLP '
`
`Byi QDawn Newton
`
`Attorney for Omni Enviro, LLC
`
`Date:
`
`/5*’ -2?*- /2,
`
`10/29/12 (28566) #477695.2
`
`

`
`Certificate of Service
`
`I certify that a copy of the foregoing MOTION TO SUSPEND PROCEEDING was served by
`First Class Mail, on 0’ 24 '/2-
`on counsel for Applicant at the following address:
`
`John C. Baum
`
`Owen, Wickersham & Erickson, P.C.
`455 Market Street, Suite 1910
`San Francisco, CA 94105
`
`Dated:
`
`40 ~ Li»/.2.
`
`By:
`
`Dawn‘Newton, Esq.
`
`Attorney for Opposer
`
`Fitzgerald Abbott & Beardsley LLP
`
`1221 Broadway, 21“ Floor
`
`Oakland, California 94612
`
`Email: dnewton@fablaw.com
`
`Telephone: (510) 451-3300
`Facsimile: (510) 451-1527
`
`10/29/12 (28566) #4776952
`
`

`
`
`,_
`s&
`
`OWEN, WICKERSHAM & ERICKSON, P.C.
`2 LAWRENCE G. Tow_NtsEND CBN 8821-'84
`: ERIC D, .GELWICl{S‘ CBN 27.6335
`455 Market Street, Suite 1910
`San Francisco, California 94105
`Telephone:
`415.882.3200
`
`415.882.3232
`.
`Facsimile:
`Email: egelwicks@owe.com
`
`Email: 1townsend@owe.com
`
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`NORTHERND1sT@cT_pF CALIFORNM
`'
`_
`J QUANTUMBIOTEKPTY. LTD.,an
`,_ MCa¥No. E
`
`UNITED STATES DISTRICT COURT
`
`rt
`
`E‘
`
`I
`
`C
`
`Australian proprietary limited company
`
`Plaintiff,
`
`vs.
`
`A
`
`*
`
`l
`
`12
`13
`14
`
`.
`15 MICHAEL JENZEH, an individual,
`STEFANIE JENZBH, an individual,
`16 OMNI ENVIRO LLC, a California limited
`17
`liability company
`.
`
`Defendants.
`
`18
`
`19
`20
`
`21
`
`COMPLAINT FOR INJUNCTIVE RELIEF
`AND DAMAGES FOR:
`1. Trademarkilnfringement
`2. False Designation of Origin
`3. Cyberpiracy
`4. Unfair Competition
`5. False Advertising
`6. Breach of 2008 Agreement
`7. Breach of 2011 Agreement
`8. Rescission
`9. Dissolution of LLC
`7 10. Breach of Fid.uci'ary Duty
`1 1. Accounting
`
`DEMAND FOR JURY TRIAL
`
`22
`23 Plaintiff Quantum Biotek Pty. Ltd. alleges as follows:
`
`24
`25
`
`JURISDICTION
`This Court has original jurisdiction oi‘ the subject matter of each of the claims herein as.
`
`1.
`
`26 follows:
`
`27
`
`28
`
`
`
`1 C
`
`omplaint For lnjunctive Re-lief And. Damages; Demand for Jury Trial
`
`
`
`

`
`is
`
`??
`
`,
`
`
`
`this Court by virtue of 28 U.S.C. Sections 1331 and 1338.
`
`3.
`
`Statutory unfair competition arising under California Business and Professions Code
`
`Section 17200 et seq., and Section 17500, with supplemental jurisdiction of related state claims vested
`
`in this Court by virtue of 28 U.S.C. Sections l338(b)_ and 1367.
`
`VENUE
`
`4.
`
`Venue is proper in this district pursuant to 28 U.S.C. Section. 1391 and 1400 because "a
`
`I
`
`substantial part of the‘ trademark infringement, unfair competition, breach of contract, and breach of
`
`fiduciary duty complainedof herein has occurred and is occurring in this judicial district and
`
`‘Defendant may be found within this judicial district.
`
`INTRADISTRICT ASSIGNMENT
`
`Intradistrict assignment is appropriate under Civil Local Rule 3-2(c) because this is an/
`5.
`Intellectual Property Action.
`V
`
`U.
`
`PRELIMINARY ALLEGATIONS
`
`6.
`
`Plaintiff QUANTUM BIOTEK PTY. LTD., with its principal place of business in
`
`Horsley Park NSW, Australia, has been manufacturing magnetic water treatment systems in Australia
`
`for over I0 years and has since exported its productsto the United States, Asia, Brazil, Europe, and
`
`Africa under the name and mark OMNI ENVIRO (the “Mark”).
`
`I
`
`7.
`
`Plaintiffis informed and believes andjthereon alleges that Defendants MICHAEL
`
`{IENZEH and STEFANIE JENZEH are husband and wife, and said individuals areresidents of this
`
`judicial district,
`
`8.
`
`Plaintiffis informed and believes and therefore ‘alleges that Defendant OMNI ENVIRO
`
`LLC is a limited liability company organized and existing under the laws of the State of California,
`
`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
`
`2
`
`

`
`x‘«>«.2«.
`
`i
`
`
`
`Case3:12—cv-g1§O9-MEJ Documentl Fi|edO4/11 Page-4 of 15
`
`
`with its principal place of business in Oakland, California, and is in the business of marketing and
`
`distributing magnetic water treatment systems.’
`9.
`In 2008 James Oshana, the Principal ofPlaintiff Quantum Biotek, approached
`
`Defendants Michael Jenzeh and Stefanie Jenzeh about a business opportunity involving the limited
`
`manufacture and ‘distribution of magnetic water treatment systems in the United States. Plaintiff and
`
`. said individual Defendants intended therelationship to be a partnership where Plaintiff would own
`50°/6.ofthe partnership and receive 50% ofthe profits, and Defendants would own 50% ofthe
`
`partnership and receive 50% of the profits from the sale of the magnetic water treatment systems in
`
`the United States.
`
`I
`
`A
`
`10.
`
`In or around January 2008, Plaintiff and said individual Defendants entered into either
`
`a written agreement, or an oral agreement substantially reduced towriting, in which Plaintiff agreed to
`
`supply to Defendant Plaintiff’s water treatment systems and Defendants agreed to promote, market,
`
`_and sell Plaintiffs water treatment systems in the United States, and Plaintiff was to receive half of the
`
`profits (“the 2008 Agreement”). The 2008 Agreement authorized Defendants to sell said products
`
`under the Mark, provided ‘said products originated with Plaintiff.
`
`1 1.
`
`In or around March 2009, Plaintiff and Defendants reaffirmed the 2008 Agreement by
`
`-way of converting the initial partnership into a then formed California limited liability company-"at
`
`which time it was confirmed that Plaintiffwould continue to own 53% ofthe company as a member or"
`
`the LLC and receive 50% of the profits and Defendants would own 50% of the company and receive
`
`
`
`50% of the profits.
`
`12.
`
`In or around June 30, 2011 a Memorandum of Understanding was entered into hy
`
`Plaintiff and the individual Defendants by which the Plaintiff confirmed and entered into -a novation of
`
`the trademark license to Defendant in exchange for a fee of 15% of gross revenue (less cost of
`
`manufacturing) from the sale of Plaintiff’s magnetiewater treatment systems in the United States and
`
`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
`
`3
`
`

`
`Case3:12-cv—01809-MEJ Documentl FiledO4/11/12 Page5of1
`V
`V
`'
`
`I
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`monthly volume of sales and sales price per unit reports to be prepared by Defendants (“the 2011
`
`Agreement”).
`
`13.
`
`It was understood and agreedunder the 2011 Agreement that Defendants would also
`
`account to and pay Plaintiff 50% of the profits that had accrued for sales prior to June 30, 2011.
`
`Consistent with the foregoing, the parties took note that there was at about that time $104,000 in the
`
`company’s bank account and, as an advance against said prospective accounting and payment for past
`
`profits, Defendants agreed to pay anddid pay to Plaintiff the sum of $50,000 in profits.
`
`14.
`
`Accordingly, Plaintiff seeks an accounting and payment of all profits to which Plaintiff
`
`10
`
`is entitled, monetary and injunctive relief for trademark infringement, and damages, including punitive
`
`11
`
`12
`
`13
`
`14
`
`15
`
`I6
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`17
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`18
`
`19
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`20
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`21
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`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
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`damages for Defendants’ wrongful conduct as set forth herein.
`
`FIRST CLAIM FOR RELIEF
`TRADEMARK INFRINGEMENT
`
`15.
`
`Paragraphs '1 -14 are incorporated by reference as though set forth in their entirety
`
`herein.
`
`16.
`
`'
`
`Prior to forming the business relationship with Defendants, Plaintiff had for many years
`
`used the marks OMNI ENVIRONMENTAL GROUP, OMNI ENVIRO WATER SOLUTIONS,
`
`OMNI ENVIRO WATER SYSTEMS, and OMNIHENVIRO SERVICES. Furthermore, Plaintiff
`
`secured the domain names <omnienviro.com> and <omnienviro.com.au> asfar back as 2006, and
`
`Plaintiff has used OMNIENVIROCOM as a mark in connection with its business;
`
`17.
`
`‘Upon the material breaches by Defendants of the 2011 Agreement primarily consisting
`
`of failure to properly account and pay Plaintiff’ s share ofprofits, Plaintiff in October 2011 terminated _
`
`the 201 1 Agreement, including the license granted to Defendants to use the Mark. In violation of
`
`' Plaintiffs superior rights, Defendants, have continued to use the Mark in distributing and selling
`
`magnetic water treatment systems without paying the 15% owed under the 2011 Agreement, inclusive
`
`of amounts representing trademark license fees. Such infringing use has been committed by
`
`Complaint For Inj unctive Relief And Damages; Demand for Jury Trial
`
`4
`
`

`
`i
`
`
`
`
`
`
`
`Case3:12—cv-,g1,§O9—MEJ Documentl
`
`FiledO4/11/,:l;+2. Page6 of 15
`P:,i,§;3’» »
`
`
`Defendants with Defendants’ knowledge that such imitation will cause confusion, mistake, or that it
`
`will deceive among customers and prospective customers of the respective parties.
`
`18.
`
`» Defendants’ unauthorized use of the Mark is causing and will cause likelihood of
`
`confusion among customers and prospective customers, and it therefore constitutes trademark
`
`infringement entitling Plaintiff to damages and/or profits under the Lanham Act, including
`disgorgement ofprofits for Defendants’s unjust enrichment.
`.
`19.
`Defendants’ acts ofinfiingement have caused and are causing great and irreparable
`injury to Plaintiff and to the Mark and goodwill represented thereby. Unless this infringement is
`
`O restrained, Defendants’ use will cause further irreparable injury leaving Plaintiff with no adequate
`
`remedy at law.
`
`20.
`
`By reason of the foregoing, Plaintiff is entitled to injunctive relief against Defendants,
`
`restraining further infringement, and Plaintiff further seeks Defendants’ profits and/or Plaintiffs
`
`damages proven to have beencaused by reason of Defendants’ infringement of the Mark.
`.
`
`15
`
`16 Additionally, Plaintiff is entitled to the costs of the action including attorneys’ fees.
`
`I 7,
`
`1 3
`
`19
`
`Wherefore, Plaintiffprays for relief as hereinafter set forth.
`
`SECOND CLAIM FOR RELIEF
`UNFAIR COMPETITION, FALSE DESIGNATION OF ORIGIN, AND FALSE
`DESCRIPTIONS
`-
`
`15 U.S.C. § 1125(a) '
`Plaintiffrestates and incorporates by reference the allegations ofParagraphs 1 through
`
`21.
`
`20, above, as if set forth herein.
`
`22.
`
`Defendants’ continued use of the Mark is a false designation oforigin, false or
`
`misleading description offact, or false or misleading representation"offact wlzicli is likely to cause
`confusion, or to cause mistake, or to deceive as to the ‘affiliation, connection, or association of
`
`Defendant with Plaintiff; oras to the origin, sponsorship, or approval ofDefendants’ goods and
`
`5
`
`
`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
`
`

`
`E
`
`
`commercial activities by Plaintiffin violation oflsection 43(a) ofthe Lanham Act, 15 U.S.C. §
`
`1 l25(a).
`
`23.
`
`Defendants have used false or misleading description of fact, or a false or misleading_
`
`representation of fact, which in commercial advertising or promotion, misrepresents the nature,
`
`characteristics and/or qualities of Defendants’ goods. Specifically, Defendants are intentionally and
`
`deliberately withholding information and mischaracterizing scientific research and customer
`
`testimonials in promotional materials for the magnetic water treatments systems Defendants offers for
`
`sale and sell. The scientific research and success stories Defendants use to promote their magnetic
`
`‘O®\lG\UI&LuN
`
`
`
`19 water treatment systems have no direct relation to Defendants’ goods, nor actual bearing as to the
`
`11
`
`12
`
`13
`
`14
`
`is
`
`16
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`nature, characteristics and/or qualities of Defendants’ goods (Defendants’ goods are stainless steel and
`
`Plaintiffs genuine goods are not), as the scientific research and customer success stories used by
`
`Defendants relate specifically to Plaintiff’ s goods. On the basis of the foregoing, Defendants have in
`.
`connection with its goods used a false or misleading description of fact, or a false or misleading
`
`representation of fact, which misrepresents the nature, characteristics and/or qualities ofDefendants’
`
`17 goods in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`
`13
`
`24.
`
`Defendants’ deception is material and is likely to influence the purchasing decisions of
`
`19 magnetic water treatment system customers, including Plaintiffs customers. Defendants’ false and
`
`20 misleading statements and representations were and are made in interstate commerce. Defendants’
`21
`‘
`improper activities, as described above, have been willful and deliberate, thereby making thisan
`»
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27-
`28
`
`exceptional case under the Lanham Act. As a result of Defendants’ improper activities, Plaintiff has‘
`‘
`suffered and continues to suffer substantial injury, including inreparable injury and damages, including
`
`but not limited to loss of sales and profits to Plaintiff which Plaintiff would have made but for the
`
`false and deceptive advertising by Defendants.
`
`Wherefore, Plaintiffprays for reliefas hereinafter set forth.
`
`6
`
`
`Complaint For lnjunctive Relief And Damages; Demand for Jury Trial
`
`

`
`Case3:12—cv-Q;i§,09-MEJ Documentl
`
`
`FiledO4/11/,i;L_-gg Page8 of 15
`
`THIRD CLAIM FOR RELIEF
`
`FEDERAL -‘CYBERPIRAICY
`
`1.5 U.S.C. § 11‘25(d)
`
`\O®\lO\UI.Atu[q
`
`25.
`
`Plaintiffrestates and incorporates by reference the allegations of Paragraphs 1 through
`
`24, above, as if set forth herein.
`
`26.
`
`With. full knowledge of Plaintiff’ s trademark rights in themark QUANTUM BIOTEK,
`
`Defendant Michael Jenzeh registered the domain name <QuantumBiotek.com> in bad faith.
`
`27.
`
`By reason of the foregoing, Plaintiff is entitled to injunctive relief against Defendant,
`
`including restraining Defendant from making use of the confusingly similar domain name and
`
`10
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`ordering Defendant to cancel said domain name or transfer said domain name to Plaintiff. Plaintiff is
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`
`
`11
`
`12
`
`13
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`14-
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`further entitled to .recover attorneys’ fees and any damages, including statutory damages at the election
`
`of Plaintiff, proven to have been caused by reason of Defendant’s aforesaid acts of cyberpiraoy.
`
`Wherefore, Plaintiff prays for relief as hereinafter set forth.
`
`FOURTH CLAIM FOR RELIEF
`UNFAIR COMPETITION
`
`[Violations of California Bus. and Prof. Code § 17200 et seq.]
`
`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`28.
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`Plaintiff restates and incorporates by reference the allegations of Paragraphs 1 through
`
`27, above, as if set forth herein.
`
`29.
`
`‘Defendant’s actions alleged herein above constitute unlawful and/or unfair acts in
`
`violation of California Business & Professions Code § 17200, et seq.
`
`30.
`
`The conduct ofDefendant as alleged herein will, unless restrained, damage Plaintiffin
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`an amount to be determined at trial and cause irreparable harm including the serious impairment of the
`
`value of the Mark. Plaintiff is entitled to receive from Defendant any money it has received or
`
`25
`
`acquired as a result of its unfair competition.
`
`26
`
`27
`
`28
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`~31.
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`Plaintiffhas been damaged in an amount to be proven at trial, and Plaintiffis entitled to
`
`an accounting of Defendants’ profits as well as enhanced remedies as provided by law for Defendants’
`
`willful conduct.
`
`7
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`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
`
`

`
`Case3:12—cv—O1809-MEJ Documentl FiledO4/11/3 Page9 of 15
`V
`rd
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`Wherefore, Plaintiff prays for relief as hereinafter set forth.
`
`FIFTH CLAIM
`FALSE ADVERTISING
`
`[Violations of California Bus. and Prof. Code §1750l)]
`
`\OOO\lO\UI-B
`
`32.
`
`Plaintiff restates and incorporates by reference the allegations of Paragraphs l through
`
`31', above, as if set forth herein.
`
`33.
`Beginning at an exact date unknown to Plaintiff, but at least since June 2011,
`Defendants have committed acts of untrue and-misleading advertising, as defined by Business and
`
`Professions Code § 17500 by engaging in the above described acts and practices with intent to induce‘
`
`10
`
`members of the public to enter into contracts for magnetic water treatment systems.
`
`34.
`
`Unless such wrongful conduct is restricted, the acts of untrue and misleading
`
`advertising by Defendants described above present a continuing threat to members of the public in that
`
`they are falsely mislead and deceived regarding Defendants‘ apparent association with or endorsement
`
`by Plaintiff.
`
`' Wherefore, Plaintiff prays for relief as hereinafter set forth.
`
`SIXTH CLAIM FOR RELIEF
`
`BREACH OF 2008 AGREEMENT
`
`35.
`
`Plaintiff restates and incorporates by reference the allegations of Paragraphs 1 through
`
`34, above, as if set forth herein.
`
`36.
`
`37.
`
`The parties entered into the 2008 Agreement as set forth above.
`
`"Plaintiff has performed all conditions, covenants, and promises required on its part to
`
`be performed in accordance with the terms and conditions of the agreement.
`
`38.
`
`Defendants have breached the agreement by 1) refusing and failing to pay monies owed
`
`to Plaintiff per the terms of the 2008 Agreement, namely 50% of the profits accrued through June 30,
`
`2011; and, 2) failing to provide Plaintiff with accounting records and financial statements per the
`
`11
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`12
`
`13
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`14
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`15
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`16
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`17-
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`28
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`Complaint For Inj unctive Relief And Damages; Demand for Jury Trial
`
`8
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`

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`Case3:12—cv—Oey%§PQ9-MEJ Document]. FiledO4/11
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`-Pagelo of 15
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`terms of the agreement and when requested by Plaintiff that would attest to the financial state of
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`business.
`
`39.
`
`As a result of Defendants’ breach of the contract, Plaintiff has been damaged in an
`
`amount to be determined at trial.
`
`Wherefore, Plaintiffprays for reliefas hereinafter set‘ forth.
`SEVENTH CLAIM FOR RELIEF
`BREACH or 2011 AGREEMENT
`
`40.
`
`Plaintiffrestates and incorporates by reference the allegations ofParagraphs 1 through
`
`39, above, as if set forth herein.
`4l.
`The parties entered into the 2011 Agreement as set forth above.
`42.
`Plaintiffhas performed all conditions, covenants, andpromises required on itspartto
`
`be performed in accordance with the terms and conditions of the agreement.
`
`_
`
`43.
`
`Defendants have breached the 2011 Agreement by 1) refusing andfailing to pay
`
`1 2
`
`3
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`4
`
`5
`6
`7
`
`8
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`9
`10
`I:
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`13
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`14
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`15 monies owed to Plaintiff per the terms of the agreement; 2) failing to provide Plaintiff with accounting
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`16
`1 7
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`18
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`19
`
`-20
`
`21
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`records and financial statements per the terms of the agreement and when requested by Plaintiff that
`
`would attest to the financial state of business; and, 3) failing -to provide Plaintiff with inventory
`_
`records reflecting the amount of product held in stock by the LLC per the terms if the agreement and
`
`when requested by Plaintiff.
`
`44.
`
`As a result of Defendants’ breach of contract, Plaintiff has been damaged in an amount
`
`22
`
`to be determined at trial.
`
`23
`
`24
`25
`
`35
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`Wherefore, Plaintiffprays for relief as hereinafter set forth.
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`’ EIGHTH CLAIM FOR RELIEF
`RESCISSION
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`45.
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`Plaintiffrestates and incorporates by reference the allegations of Paragraphs 1 through
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`27 44, above, as if set forth herein.
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`28
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`46.
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`On or about October 5, 2011 and thereafter Plaintiff notified Defendants ofits election
`9
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`Complaint For Injunctive Relief And Damages; Demand" for Jury Trial
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`t
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`1'
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`Case8:12-cv— 9—MEJ Documentl
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`FiledO4/11/%;2;~;7;,,‘Page11 of 15
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`to rescind the 2011 Agreement based on total or partial failure of consideration through the sole fault ’
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`of Defendants due to Defendants’, failure to account and pay moneys owing to Plaintiff as required in
`the 2011 Agreement and failure and refitsal to pay monies owed under the Agreement or toprovide
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`accounting statements to Plaintiff.
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`1 2
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`3'
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`4
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`As a result ofDefendants’ breach, Plaintiff seeks a judicial determination by the court '
`47.
`5
`that the 20l 1 Agreement has been rescinded," together with any damages to which Plaintiffis entitled
`6
`2 under California Civil Code Section 1689.
`9'
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`H" Wherefore, Plaintiffprays for relief as hereinafter set forth.
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`10
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`I
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`:: i
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`NINTH CLAIM FOR RELIEF
`BREACH OF FIDUCIARY DUTY
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`48.
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`Plaintiffrestates and incorporates byreference the allegations of‘Paragraphs 1 through
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`13
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`47, above, as if set forth herein.
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`14
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`49.
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`Defendants Michael Jenzeh and Stefanie Jenzeh owed a fiduciary duty to Plaintiff by
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`15 virtue of the trust Plaintiff reposed in Defendants to manage the affairs of the LLC, by virtue of
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`16 Defendants’ duty they assumed to hold monies and income received through sales ofthe cornpany’s
`.17
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`products with which they were entrusted to account for and pay Plaintiffits share in the profits, by
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`18
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`1.9
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`20
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`-21
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`virtue of Defendant Michael Jenzeh’s role as the managing member of the LLC, and by virtue of
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`Corporations Code Section 17153 and theicornmon law.
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`50.
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`Defendants breached their fiduciary duty to Plaintiff by repeatedly failing to account
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`and pay Plaintiff its share in the profits, by refusing Plaintiff access to the books .and records of the
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`23 cornpany, and by providing Plaintiff false and/or incomplete information so as to hide the true status '
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`24 ofthe company’s finances, among other things.
`25
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`26
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`27
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`28
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`51.
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`In taking the actions described herein, Defendants acted with knowledge of the fraud
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`and continued to perpetrate it by virtue of its activities.
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`52.
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`As a direct and proximate result of the Defendants’ misrepresentations and suppression T
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`Complaint For Injuzictive ReliefAnd Damages; ‘Demand for Jury Trial
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`Case3:12-cv-01809-ME.) Documentl FiIedO4/11/12 Pagelz of 15
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`f
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`of facts, Plaintiff has been damaged in amount to be determined at trial.
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`5 3.
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`In doing the acts herein alleged, Defendants acted fraudulently, willfully, maliciously,
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`oppressively, and with callous disregard of Plaintiff’ s interests, and subjected Plaintiff to unjust
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`hardship, knowing that their conduct was substantially likely to vex, annoy, and injure Plaintiff,
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`.
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`wherein Plaintiff is entitled to an award of punitive damages.
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`Wherefore, Plaintiff prays for relief as hereinafter set forth.
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`TENTH. CLAIM FOR RELIEF
`DISSOLUTION OF OMNI ENVIRO LLC
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`54.
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`Plaintiff restates and incorporates by reference the allegations of Paragraphs 1 through
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`53, above, as if set forth herein.
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`55.
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`As a 50% owner/rnember of Omni Enviro LLC, Plaintiff seeks judicial dissolution of
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`the company under California Corporations Code Section l735,l et seq. on any or all of the following
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`grounds:
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`(1) It is not reasonably practicable to carry on the business in
`con formity with the articles of organization or operating agreement.
`(2) Dissolution is reasonably necessary for the protection of the
`rights or interests of the complaining members.
`(3) The business of the limited liability company has been
`abandoned.
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`(4) The management of the limited liability company is deadlocked
`or subject to internal dissention.
`(5) Those in control of the company have been guilty of, or have
`knowingly countenanced persistent and pervasive fraud, mismanagement,
`or abuse of‘authority.
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`Wherefore, Plaintiff prays for relief as hereinafter set forth.
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`ELEVENTH CLAIM FOR RELIEF
`.
`ACCOUNTING
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`[15 U.S.C. §1117(a); Common Law]
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`- 56.
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`Plaintiffrestatesand incorporates by reference the allegations of Paragraphs 1 through
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`55, above, as if set forth herein.
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`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
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`1 l
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`‘°°°\lO.\u:.|>‘<.uN
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`10
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`12
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`13
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`14
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`17
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`x 1
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`Case3:12—cv—,O:;5:;l:é;8O9-MEJ Documentil FiledO4/11 Page13 of 15
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`57.
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`Defendants’ activities alleged hereinabove entitle Plaintiff under principles of law and
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`equity to an accounting of all revenues received arising out of use of the Mark, the above agreements,
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`and by virtue of their activities through or under the guise of the limited liability company.
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`Wherefore, Plaintiff prays for relief -as hereinafter set forth.
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`WHEREFORE, Plaintiffrespectfully requests:
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`PRAYER FOR RELIEF
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`1.
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`That Defendants, its officers, directors, agents, employees, licensors, licensees,
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`affiliates, any parent and subsidiary corporations, attorneys and representatives and all those in privity
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`-
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`1
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`2
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`3 4 5 6 7 8
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`9
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`10 or acting under its direction and/or pursuant to its control, be enjoined and restrained, preliminarily
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`and permanently from directly and indirectly:
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`a.
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`Manufacturing, producing, sourcing, importing, selling, offering for sale,
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`distributing, advertising, or'promoting any products which bear the trademark
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`OMNI ENVIRO, or any marks or designations that so resembles Plaintiff’s
`OMNI ENVIRO trademark as to be likely to cause confusion, mistake, or
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`deception;
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`b.
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`c.
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`d.
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`e.
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`Using any symbol, design, designation or other device that is likely to cause
`confirsion, mistake, or deception as to an affiliation or association ofDefendant
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`or its goods with Plaintiff;
`Further infringing the rights ofPlaintiffin Plaintiffs OMNI ENVIRO
`. trademark orotherwise damaging Plaintiffs goodwill orbusinessreputation;
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`Otherwise competing unfairly with Plaintiffin any manner; and
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`Continuing to perform in any manner whatsoever any of the other acts
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`’
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`,
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`-
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`complained of in this Complaint.
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`2.
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`That Defendants and/or their officers, directors, agents, employees, licensors, licensees
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`and all those acting under its direction and pursuant to its control, be ordered to deliver to Plaintifffor
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`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
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`Case3i12~cv—O1809—MEJ Documentl FiIedO4/11/1_g'Page15 of 15
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`‘av
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`Dated: April
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`2012
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`OWEN, WICKERSHAM & ERICKSON P.C.
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`Respectfully submitted,
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`
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`Lawren G. Townsend
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`Eric D. Gelwieks
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`Attorneys for Plaintiff
`Quantum Biotek Pty. Ltd.
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`DEMAND FOR JURY TRIAL
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`Plaintiff hereby demands a trial byiury.
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`Dated: April LL, 2012
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`OWEN, WICKERSHAM & ERICKSON P.C.
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` Lawrence G.
`. ownsend
`Eric D. Gelwicks
`
`Attorneys for Plaintiff
`Quantum Biotek Pty. Ltd.
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`Complaint For Injunctive Relief And Damages; Demand for Jury Trial
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`14
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`11
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`r--n O\
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`Case5:12-cv-01809-RMW Documentll FiledO7/10/12 Page1of7
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`Arthur J. Chapman, Esq., Bar No. 79866
`CHAPMAN GLUCKSMAN DEAN ROEB & BARGER
`A PROFESSIONAL CORPORATION
`11900 WEST OLYMPIC BOULEVARD, SUITE 800
`LOS ANGELES, CALIFORNIA 90064-0704
`(310) 207-7722 0 FAX: (310) 207-6550
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`Attorneys for Defendants and Counterclaim-
`plaintiffs, MICHAEL JENZEH, STEFANIE
`JENZEH, and OMNI ENVIRO LLC -
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No.2 CV12l809 RMW
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`Action Filed: April 11,2012
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`COUNTERCLAIM OF MICHAEL
`
`JENZEH, STEFANIE JENZEH AND
`ENVIRO, LLC AND .DEMAND FOR
`JURY TRIAL
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`QUANTUM BIOTEK PTY, LTD, an
`Australian proprietary limited company,
`
`Plaintiff,
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`V.
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`MICHAEL JENZEH, an individual,
`STEFANIE JENZEH, an individual, OMNI
`ENVIRO, LLC, a California limited liability
`company,
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`Defendants.
`
`MICHAEL JENZEH, an individual,
`STEFANIE JENZEH,‘ an individual, OMNI
`ENVIRO, LLC, a California limited liability
`company,
`_
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`Counterclaim-Plaintiffs,
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`QUANTUM BIOTEK PTY, LTD, an
`Australian proprietary limited company, and
`ARTHUR TWAIN,
`.
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`Counterclaim-Defendants
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`yxx./\/\/\./\./sag/\/\/\/\./x/sax/\/\/\_/\/\/\./\_/\/C/C_/\/\.l\/\l\.\,.,.,.,
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`1
`COUNTERCLAIM AND DEMAND FOR JURY TRIAL
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`

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`Case5:l2-cv-01809—RMW Documentll FiledO7/10/S12 Page2 of?
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`Defendants andICounterclaim-plaintiffs, MICHAEL JENZEH, STEFANIE JENZEH and
`OMNI ENVIRO, LLC, a California limited liability company, allege as follows:
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`JURISDICTION
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`1.
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`This Court has original jurisdiction of the subject matter of each of the
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`counterclaims herein as follows:
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`2.
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`Trademark infringement, false designation of origin and false description or
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`representation in violation of 15 U.S.C. Section 1125(a) and (d), with original jurisdiction vested
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`in this Court by virtue of 28 U.S.C. Sections 1331 and 1338.
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`3.
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`Statutory unfair competition arising under California Business and Professions
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`Code Section 17200, et seq., and 17500, with supplemental jurisdiction ofrelated state claims
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`1
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`vested in this Court by virtue of 28 U.S.C. Sections 1338(b) and 1367.
`VENUE
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`4.
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`Venue is proper in this district because plaintiffs commenced their actions in this
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`district and the actions are pending here and the acts and conduct of defendants performed in this
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`district.
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`5.
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`Venue is proper as to Counterclaim-defendant ARTHUR TWAIN as he resides in
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`this district.
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`INTRADISTRICT ASSIGNMENT
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`6.
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`Intradistrict assignment is appropriate under Civil Local Rule 3-2(c) because this is
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`an Intellectual Property Action.
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`PRELIMINARY ALLEGATIONS
`
`7.
`
`Counterclaim-plaintiff OMNI ENVIRO, LLC is a California Limited Liability
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`Company with its principle place of business in Oakland, California, and is in the business and
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`i manufacturing magnetic water systems in the United States.
`
`8.
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`Counterclaim-plaintiff is informed and believes and thereon alleges that
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`Counterclaim~defendant ARTHUR TWAIN is an individual and a resident of this judicial district.
`
`///
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`///
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`2
`COUNTERCLAIM AND DEMAND FOR JURY TRIAL
`
`1
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`OLOm\103U1-I>OOl\)
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`Case5:12-cv-01809-RMW Documentll Fi|edO7/10/12 Page3 0f7
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`FIRST CLAIM FOR RELIEF
`
`UNFAIR COMPETITION
`
`9.
`
`Paragraphs 1 through 8 are incorporated. by reference as though set forth in their
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`entirety herein.
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`10.
`
`Counterclaim-defendants are in violation of 15 U.S.C. Section 1125 in that they
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`have willfully performed the following acts, which are false and misleading with the intent and
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`affect of causing confusion and mistake in order to deceive costumers and potential costumers as
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`to their affiliation, _connection, or association with Counterclaim-plaintiffs and as to the origin,
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`sponsorship and approval of their goods, services or commercial activities by Counterclaim-
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`defendants by performing the following acts:
`
`a.
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`b.
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`C.
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`A Using “Omni Enviro” trademarks and logo;
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`Distributing look-alikes counter-claimants’ copyrighted materials;
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`Posting look-alike WebPages on the internet;
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`Intercepting emails directed to Counterclaim-plaintiff and using the
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`information t