Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA642429
`ESTTA Tracking number:
`12/03/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92059536
`Plaintiff
`Dynamic Sports Nutrition, LLC
`JOHN S EGBERT
`EGBERT LAW OFFICES PLLC
`1314 TEXAS FL 21
`HOUSTON, TX 77002
`UNITED STATES
`mail@egbertlawoffices.com
`Motion to Suspend for Civil Action
`John S. Egbert
`mail@egbertlawoffices.com
`/2259-153,156/
`12/03/2014
`2259-153 Motion to Suspend.pdf(4867636 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Registration No. 4,075,248
`Registered on December 20, 2011
`
`Dynamic Sports Nutrition, LLC,
`
`Petitioner,
`
`V.
`
`ProMera Health LLC,
`
`Registrant.
`
`In the Matter of Registration No. 4,560,951
`Registered on July 1, 2014
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`Dynamic Sports Nutrition, LLC,
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`Petitioner,
`
`V.
`
`ProMera Health LLC,
`
`Registrant.
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`<0’JC0'>O0JC4O'30O'300.>OO'-150000’:
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`f—O'>00300'J<‘oO'JC«O’J<0'>00-7¢oO'.>C0.i
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`Cancellation No. 92059536
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`Cancellation No. 92059544
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`PETITIONER'S MOTION TO SUSPEND PROCEEDINGS
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`Pursuant
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`to 37 C.F.R. §§ 2.ll7(b) and 2.l27(a), Dynamic Sports Nutrition, LLC
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`("Petitioner"), by its attorneys, hereby moves the Trademark Trial and Appeal Board ("TTAB") to
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`suspend these consolidated proceedings, pending final disposition of the civil action filed by
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`Dynamic Sports Nutrition, LLC against Defendants iBuy Body, LLC (a Florida LLC), Phillip
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`Birtasevic, and iBuy Body, LLC (a Wyoming LLC). In support of this motion, Petitioner submits
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`herewith a copy of the Complaint, filed on January 22, 2014 in the U.S. District Court for the
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`Southern District of Texas, identified as Dynamic Sports Nutrition, LLC v. IB UYBODY, LLC et al. ,
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`
`
`
`
`

`
`;;1
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`1,tV.
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`Civil Action No. 4: 14-cv-00151. See [Exhibit "A"]. Petitioner also submits a copy ofthe Amended
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`Complaint filed on February 27, 2014. See [Exhibit "B"]. Finally, Petitioner submits a copy of the
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`Defendant's Answer and Counterclaims to Plaintiffs First Amended Complaint filed on March 17,
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`2014. See [Exhibit "C"].
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`As grounds in support of this motion, Petitioner respectfully submits that the issues before
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`the District Court implicate Petitioner's trademark registration and common law rights to the
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`trademark "TREN 75". In the Dynamic Sports Nutrition, LLC v. IB UY BODY, LLC et al. litigation,
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`Defendants have filed a counterclaim,
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`in part,
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`to cancel Petitioner's "TREN 75" trademark
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`registration. Depending on the outcome of the pending litigation, the present Cancellation
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`proceedings could be moot. There fore, the civil proceeding has a direct bearing on the cases before
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`the Board, and it is currently in progress.
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`The pending civil action in the Southern District of Texas involves Petitioner's plead
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`trademark registration and related issues, and a determination by the District Court could be relevant
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`to the disposition of these consolidated Cancellation proceedings. Petitioner therefore respectfully
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`requests suspension of these proceedings pending determination of the civil action pursuant to
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`Trademark Rule 2.1 l7(b).
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`

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`Respectfully submitted,
`
`
`December 3 2014
`
`
`/2259-153 156/
`
`Date
`
`John S. Egbert
`Reg. No. 30,627
`Kevin S. Wilson
`
`Michael F. Swartz
`
`Egbert Law Offices, PLLC
`1314 Texas, 21“ Floor
`
`Houston, Texas 77002
`
`(713)224-8080
`(713)223-4873 (Fax)
`
`ATTORNEYS FOR PETITIONER
`
`Dynamic Sports Nutrition, LLC
`
`

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`CERTIFICATE OF SERVICE
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`I hereby certify that Petitioner's Motion to Suspend Proceedings is being sent by first class
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`mail on December 3, 2014, to the attorney of record for Registrant at the following address:
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`Scott D. Woldow, Esq.
`Stephanie S. Scruggs, Esq.
`Smith, Gambrell & Russell, LLP
`
`1055 Thomas Jefferson St., N.W., Suite 400
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`Washington, DC 20007
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`ATTORNEYS FOR REGISTRANT
`ProMera Health LLC
`
`_
`
`'
`
`
`
`4
`
`/2259-153 156/
`
`John S. Egbert
`Reg. No. 30,627
`Kevin S. Wilson
`Michael F. Swartz
`
`Egbert Law Offices, PLLC
`1314 Texas, 215‘ Floor
`
`Houston, Texas 77002
`
`(713)224-8080
`(713)223-4873 (Fax)
`
`ATTORNEYS FOR PETITIONER
`
`Dynamic Sports Nutrition, LLC
`
`
`
`JSE:mfs
`
`Our File: 2259—153,156
`
`

`
`Exhibit "A"
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`
`

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`Case 4:14—cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`DYNAMIC SPORTS NUTRITION, LLC,
`
`Plaintiff,
`
`vs.
`IBUY BODY, LLC and PHILLIP
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`BIRTASEVIC d/b/a STACKLABS
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`Defendant.
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`§
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`E
`E
`§
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`§
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`§
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`CIVIL ACTION NO.
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`PLAINTIFF'S ORIGINAL COMPLAINT
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`Dynamic Sports Nutrition, LLC ("DSN" or "Plaintiff") files this Original Complaint against
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`IBUY BODY, LLC and Phillip Birtasevic d/b/a STACKLABS (collectively "Defendants") and
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`would respectfully show the Court as follows:
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`PARTIES
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`1.
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`Plaintiff DSN is a Texas limited liability company having an address of I330 Post
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`Oak Blvd., Ste. 2900, Houston, Texas 77056.
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`2.
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`Upon information and belief, Defendant IBUY BODY, LLC is a Florida limited
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`liability company having is principal place of business located at 307 NW 1 Avenue #1102, Fort
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`Lauderdale, Florida 33301, and Plaintiff may effectuate service of process upon Defendant at its
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`principal place of business.
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`3.
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`Upon information and belief, Defendant Phillip Birtasevic is an individual and citizen
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`of Florida and the United States doing business as STACKLABS, an assumed name registered in
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`
`
`
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`«4_—_—.-«..~T.,=.:=»:»,e,+a—.+,:«-~»—«—,«A«~::—,~.—~‘-.~~-~~:-~«—
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`

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`Case 4:14-cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 2 of 10
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`Harris County, Texas, who can be served individually at 307 NW 1 Avenue #1 102, Fort Lauderdale,
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`Florida 33301.
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`JURISDICTION AND VENUE
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`4.
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`The United States District Court for the Southern District of Texas has jurisdiction
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`over this action pursuant to the provisions of 28 U.S.C. § 1331 in that this matter is a civil action
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`arising under the Constitution, laws, or treaties of the United States. Specifically, this action
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`involves federal trademark rights, federal Lanham Act violations and other federal causes of action.
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`Subject matter jurisdiction over those of DSN's claims that arise under state law are based upon the
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`principles ofsupplemental jurisdiction set forth in 28 U.S .C. § 1367, and the provisions of28 U.S.C.
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`§ 1338(b) as an action asserting a claim for Texas trademark infringement and unfair competition
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`joined with a substantial and related claim under the federal trademark laws.
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`5.
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`DSN is informed and believes and thereupon alleges that venue in this action is
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`proper in this district pursuant to 28 U.S.C. § 1391.
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`FACTUAL BACKGROUND
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`6.
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`Since its inception, DSN has been in the business of developing safe, natural and
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`innovative nutritional and dietary supplements. DSN is a preeminent source of dietary and nutrition
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`supplements, and has spent significant amounts ofmoney and resources in research and development
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`of its products. DSN's health and dietary products help to promote healthy living and longevity.
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`7.
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`DSN is the owner of, among others, the following federally registered trademark
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`registrations (the "DSN Marks"):
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`"WINSTROL", U.S. Trademark Registration No. 4,3 73,021, registered July 23, 2013 for
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`"dietary and nutritional supplements" in International Class 5 attached hereto as Exhibit 1;
`
`
`
`1,»:*~,—,-.~,,«.«»~.«:.—:wwe~,—.-«~—«,~:,~.
`
`
`
`
`
`

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`Case 4:14-cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 3 of 10
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`"ANDROL", U.S. Trademark Registration No. 4,448,500, registered December 10, 2013 for
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`"dietary and nutritional supplements" in International Class 5 attached hereto as Exhibit 2;
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`"TRENBOLONE", U.S. Trademark Registration No. 4,126,929, registered April 10, 2012
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`for "dietary and nutritional supplements" in International Class 5 attached hereto as Exhibit 3;
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`"TREN 75 ", U.S. Trademark Registration No. 4,140,455, registered May 8, 2012 for "dietary
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`and nutritional supplements" in International Class 5 attached hereto as Exhibit 4;
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`"CLEN", U.S. Trademark Registration No. 4,416,649, registered October 15, 2013 for
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`"dietary and nutritional supplements" in International Class 5 attached hereto as Exhibit 5; and
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`"DECA 200", U.S. Trademark Registration No. 4,141,246, registered May 15, 2012 for
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`"dietary and nutritional supplements" in International Class 5 attached hereto as Exhibit 6.
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`8.
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`The DSN Marks and the resulting registrations are valid, subsisting, and in full force
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`and effect.
`
`9.
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`The DSN Marks are associated exclusively with DSN for use with "nutritional and
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`dietary supplements." DSN has a constructive first use date of the mark "WINSTROL" of July 7,
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`2011 and has used its mark in interstate commerce continuously since registration. DSN has a
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`constructive first use date of the mark "ANDROL" of April 16, 2012 and has used its mark in
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`interstate commerce continuously since registration. DSN has a constructive first use date of the
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`mark "TRENBOLONE" of June 7, 2011 and has used its mark in interstate commerce continuously
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`since registration. DSN has used the mark "TREN 75 " in interstate commerce continuously since
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`at least as early as October 1, 2005. DSN has used the mark "CLEN" in interstate commerce
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`continuously since at least as early as October 1, 2005. DSN has used the mark "DECA 200" in
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`interstate commerce continuously since at least as early as October 1, 2005 . As a result of its
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`

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`Case 4:14-cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 4 of 10
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`continued use, marketing of its products and other business generation efforts to promote the DSN
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`Marks, the DSN Marks have become well—known in commerce to identify DSN's products and
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`business. Customers and potential customers have come to identify the DSN Marks as originating
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`with DSN. Whenever consumers have seen the DSN Marks on "dietary and nutritional
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`supplements," they have recognized the DSN Marks as indicators ofthe high quality that consumers
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`have come to expect from DSN. Consequently, DSN has developed substantial recognition among
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`the consuming public for its high quality products sold under its DSN Marks and enjoys extensive
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`goodwill associated with the DSN Marks. Furthermore, consumers throughout the United States
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`now recognize the respective DSN Marks as identifying a single source ofDSN's high quality dietary
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`and nutritional supplements.
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`10.
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`DSN recently became aware of Defendants and of the fact that Defendants have
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`distributed and sold dietary and nutritional supplements under various marks that are confusingly
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`similar to DSN's Marks and have, thereby, infringed upon DSN's trademark rights. Specifically, long
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`after the first use dates of DSN's Marks, Defendants have previously sold and promoted nutritional
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`and dietary supplements under the purported marks "TREN", "CLENBUTEROL—CLENN",
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`"WINNSTRAL" and "DLANABAL-DBOLL" and currently sell and promote nutritional and dietary
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`supplements under the purported marks "WINSTRAL", "ANADRAL", "TRENBOLONE",
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`"CLENBUTEROL-CLEN" and "DECA-DURABOL" ("Defendants' Marks"). By using marks that
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`are confusingly similar to DSN's Marks in association with identical goods, namely, nutritional and
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`dietary supplements, Defendants are infringing upon DSN's trademark rights. Given the identical
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`or substantially similar nature of Defendants’ Marks to DSN's Marks as used on identical goods,
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`
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`

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`Case 4:14—cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 5 of 10 ‘
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`there is a substantial likelihood that consumers will be confused, mislead or deceived. Accordingly,
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`Defendants’ sales of the infringing products are diminishing the Value of DSN's Marks.
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`11.
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`Furthermore, Defendants‘ sale of the infringing products without DSN's permission
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`damages the value of DSN's Marks and the goodwill and high quality reputation of DSN's branded
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`products.
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`12.
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`On information and belief, Defendants’ above-described activities have been willful.
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`13.
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`On information and belief, Defendants will continue to undertake such unlawful
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`activities which infringe DSN's trademark rights in DSN's Marks unless enjoined by this Court.
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`14.
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`As a consequence of these activities and the impairment to DSN's goodwill,
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`reputation and customer base, DSN has been irreparably harmed to an extent not yet determined and
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`will continue to be irreparably damaged by such acts in the future unless Defendants are
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`preliminarily and permanently enjoined by this Court from committing further infringing acts.
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`COUNT I — TRADEMARK INFRINGEMENT
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`AND UNFAIR COMPETITION UNDER THE LANHAM ACT
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`15.
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`16.
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`DSN repeats and realleges the allegations set forth in paragraphs 1 - 14.
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`Defendants’ improper use of, and sale of productsunder, marks confusingly similar
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`to DSN's Marks is confusing to consumers and constitutes infringement of DSN's trademark rights
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`in violation of the Lanham Trademark Act (Lanham Act). Defendants‘ unauthorized use of the
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`"TREN", "CLENBUTEROL—CLENN", "WINNSTRAL" and "DLANABAL-DBOLL" marks and
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`current use ofthe "WINSTRAL", "ANADRAL", "TRENBOLONE", "CLENBUTEROL-CLEN" and
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`"DECA—DURABOL" marks violate Section 43 of the Lanham Act, which prohibits the use of
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`trademarks in such a manner as is likely to cause confusion as to the source ofthe goods bearing the
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`
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`

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`Case 4:14-cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 6 of 10
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`trademark. See 15 U.S.C. § 1125. Defendants’ use of Defendants‘ Marks also violate Section 32 of
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`the Lanham Act prohibiting the unauthorized use of a trademark which is likely to cause confusion.
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`See 15 U.S.C. § 1114.
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`17.
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`Defendants are currently selling their products under the infringing marks and will
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`continue to do so unless enjoined from doing so by this Court. DSN has no adequate remedy at law
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`for Defendants’ infringement of DSN's Marks, in that: (i) DSN's Marks are unique and valuable
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`property rights, injury to which cannot adequately be compensated by monetary damages; (ii) the
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`injuries to DSN resulting from the infringement are not precisely and fully ascertainable; (iii) the
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`infringement injures and threatens to continue to injure DSN's reputation and goodwill; and (iv) the
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`injury resulting to DSN from Defendants‘ unlawfiil acts complained of herein are continuing, and
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`they will cause irreparable injury to DSN and to the public. Accordingly, DSN is entitled to an order
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`from this Court preliminarily and permanently enjoining Defendants and its principals, agents,
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`employees and others acting in concert with them, from directly or indirectly infringing DSN's Marks
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`in any manner,
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`including by using the names or marks unauthorized use of the "TREN",
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`"CLENBUTEROL-CLENN",
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`"WINNSTRAL",
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`"DIANABAL-DBOLL",
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`"WINSTRAL",
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`"ANADRAL", "TRENBOLONE", "CLENBUTEROL-CLEN" and "DECA-DURABOL" marks or
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`any other name, mark, design or logo that is confusingly similar to DSN's Marks in connection with
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`the sale, offer for sale, advertising, or promotion of dietary supplements, or any other goods and
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`services.
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`18.
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`Additionally, or in the alternative, DSN seeks an accounting and its actual and
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`consequential damages resulting from Defendants’ infringing acts. Moreover, as a result of
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`Defendants’ egregious infringement, namely, use of substantially similar or even identical marks in
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`

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`Case 4:14—cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 7 of 10
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`association with identical dietary and nutritional supplement products, DSN seeks treble, additional
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`and enhanced damages from Defendants.
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`COUNT H - TRADEMARK INFRINGEMENT
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`AND UNFAIR COMPETITION UNDER TEXAS LAW
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`19.
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`DSN repeats and realleges the allegations set forth in paragraphs 1 - 18.
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`20.
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`Defendants’ improper acts complained of herein constitute trademark infringement
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`and unfair competition under the common law of the State of Texas. As a result of Defendants’
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`infringement and unfair competition, DSN has suffered and will continue to suffer injury and damage
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`in an amount yet to be determined. Upon information and belief, Defendants‘ unlawful acts of
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`infringement and unfair competition have resulted in profits and unjust enrichment to Defendants
`
`in an amount yet to be determined. Defendants’ acts of trademark infringement and unfair
`
`competition are causing harm to DSN.
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`21 .
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`The injury resulting to DSN from Defendants‘ unlawful acts complained ofherein are
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`continuing and they will cause irreparable injury to DSN and to the public. Unless Defendants‘
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`unlawful acts are enjoined by this Court, they will continue to cause irreparable injury to DSN and
`
`to the public, for which there is no adequate remedy at law. Accordingly, DSN is entitled to an order
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`from this court preliminarily and permanently enjoining Defendants and its principals, agents,
`
`employees and others acting in concert with them, from directly or indirectly infringing DSN's Marks
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`in any manner, including by using the names or marks "TREN", "CLENBUTEROL-CLENN",
`
`"WINNSTRAL", "DIANABAL-DBOLL", "WINSTRAL",
`
`"ANADIUXL", "TRENBOLONE",
`
`"CLENBUTEROL-CLEN" and "DECA-DURABOL" or any other name, mark, design or logo that
`
`i,,y,
`l.l:
`i
`
`
`
`

`
`Case 4:14-cv-00151 Document 1 Filed in TXSD on 01/22/14 Page 8 of 10
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`is confusingly similar to DSN's Marks in connection with the sale, offer for sale, advertising, or
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`promotion of dietary supplements, or any other goods and services.
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`22.
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`Additionally, or in the alternative, DSN seeks an accounting and its actual and
`
`consequential damages resulting from Defendants’ infringing acts. Moreover, as a result of
`
`Defendants’ egregious infringement, DSN seeks treble, additional and enhanced damages from
`
`Defendant.
`
`COUNT III - REQUEST FOR MONETARY RELIEF,
`TREBLE DAMAGES AND ATTORNEYS’ FEES AND COSTS
`
`23.
`
`DSN repeats and realleges the allegations set forth in paragraphs 1 - 22.
`
`24.
`
`The acts ofDefendants complained ofherein have resulted in trademark infringement
`
`and unfair competition. Accordingly, pursuant to 15 U.S.C. § l117(a), DSN is entitled to recover
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`(1) Defendants’ profits; (2) any damages sustained as a result of Defendants’ acts; and (3) the costs
`
`associated with this action.
`
`25.
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`DSN is also entitled to an award of treble damages, pursuant to 15 U.S.C. 1117(b),
`
`as a result ofthe Defendants’ use of substantially similar and identical marks, and its gross, wanton,
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`or willful conduct. DSN further requests that it be granted an award of its reasonable and necessary
`
`attorneys’ fees and costs as a result of Defendants‘ unlawful actions.
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`CONCLUSION AND PRAYER
`
`26. WHEREFORE, DSN prays for entry ofjudgement:
`
`(a)
`
`finding that Defendants have infringed U.S. Trademark Reg. No. 4,37,71,02 1 , No. 4,448,500,
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`No. 4,126,929, No. 4,140,455, No. 4,416,649, No. 4,141,246 and DSN's common law trademark
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`rights in DSN's Marks;
`
`

`
`Case 4:14-cv—O0151 Document 1 Filed in TXSD on 01/22/14 Page 9 of 10
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`(b)
`
`(c)
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`finding that Defendants have devalued goodwill associated with DSN's Marks;
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`finding that Defendants have engaged in unfair competition in violation of both federal and
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`Texas law;
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`(d)
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`enjoining Defendants, its officers, directors, agents, employees, representatives, successors,
`
`assigns, if any, and those in privity or concert with them from further acts that would amount to
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`infringement ofU.S. Trademark Reg. No. 4,373,021, No. 4,448,500, No. 4,126,929, No. 4,140,455,
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`No. 4,416,649, No. 4,141,246 and DSN's common law trademark rights in DSN's Marks or unfair
`
`competition;
`
`(e)
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`awarding DSN all damages caused by the acts of Defendants and all profits of Defendants
`
`from acts complained of, and/or all costs to DSN caused by Defendants’ activities complained of
`
`herein;
`
`(f)
`
`(g)
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`trebling the damages and profits awarded to DSN as authorized by 15 U.S.C. § 1117;
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`granting DSN pre-judgment and post—judgment interest on the damages caused to DSN by
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`reason of Defendants’ activities complained of herein;
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`(h)
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`finding that this is an exceptional case and awarding DSN its reasonable and necessary
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`attorneys‘ fees in accordance with 15 U.S.C. § 1117;
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`(i)
`
`(j)
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`awarding costs to DSN; and
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`awarding DSN such other and further relief, at law or in equity, as the Court may deem just
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`and proper.
`
`

`
`Case 4:14-cv-00151 Document 1 Filed in TXSD on 01/22/14
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`Page 10 of 10
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`Respect
`
`lly submitted,
`
` John . Egbe
`
`Texas Bar No. 06479550
`
`S.D. Tex. ID No. 4215
`
`Egbert Law Offices, PLLC
`1314 Texas, 21st Floor
`Houston, Texas 77002
`
`Telephone: (713) 224-8080
`Facsimile: (713)223-4873
`Email: mail@egbertlawoffices.com
`
`Attorney-in-Charge for Plaintiff
`Dynamic Sports Nutrition, LLC
`
`Dated: January 22, 2014
`
`OF COUNSEL
`
`Kevin S. Wilson
`
`Texas Bar No. 24037725
`
`S.D. Tex. ID No. 34843
`Michael F. Swartz
`Texas Bar No. 24075136
`
`S.D. Tex. ID No. 1196190
`
`Egbert Law Offices, PLLC
`1314 Texas, 21st Floor
`Houston, Texas 77002
`
`Telephone: (713) 224-8080-
`Facsimile: (713)223-4873
`Email: kwilson@egbertlawoff1ces.com
`
`Attorney for Plaintiff
`Dynamic Sports Nutrition, LLC
`
`

`
`Case 4:14—cv-00151 Document 1-1 Filed in TXSD on 01/22/14 Page 1 of 1
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`JS44 (Rev-12/12>
`
`CIVIL COVER SHEET
`
`n
`The IS 44 civil cover sheet and the information contained herein neither re lace nor supplement the filin and service of pleadings or otiier papers as re uired by law, except as
`provided by local. rules of court. This form, a proved by the Judicial Con erence of the
`ited States in eptembcr 1974, is required for the use of the
`lerk of Court for the
`purpose ofimtiating the civil docket sheet.
`( EE[N.S7'RUCT10NS ONNEXTPAGE on THIS FORM)
`
`
`
`DEFENDANTS
`1. (a) PLAINTIFFS
`IBUY BODY, LLC and Phillip Birtasevic dlbla STACKLABS
`Dynamic Sports Nutrition, LLC
`
`Harris County
`(b) County ofResidence ofFirst Listed Plaintiff
`(EXCEPTIN US. PLAINTIFF CASES)
`
`(C) Attorneys flilnn Name, Address, and Telephone Number)
`
`John S. Egbert, Egbert Law Offices, PLLC, 1314 Texas, 21st Floor,
`Houston, TX 77002
`
`Broward County
`County ofResidence of First Listed Defendant
`(IN U. s PLAINTIFF CASES ONLY)
`IN LAND CONDBMNATION CASES, USE THE LOCATION OF
`THE TRACT OF LAND INVOLVED.
`
`NOTE:
`
`Attorneys (IfKnown)
`
`
`
`
`
`H. BASIS OF JURISDICTION (Place an "X" in One Bar Only)
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`C!
`
`1 U.S. Government
`Plaintiff
`
`24 3
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`Federal Question
`(U.S. Government Nola Parry)
`
`U 2 U.S. Government
`Defendant
`
`D 4 Diversity
`(lndlcale Cllizenslilp ofParlles In Ilem III)
`
`In. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Boxfbr Plaintiff
`(Far Diversity Cares Only)
`and One Boxfar Defendant)
`PTF
`PTF
`DEF
`U l
`Cl
`Cl 4
`
`DEF
`C)
`
`l
`
`Incorporated arPrincipalPiace
`ofBusiness In This State
`
`4
`
`Citizen ofThls State
`
`Citizen ofAnother State '
`
`D 2
`
`D 2
`
`E!
`
`5
`
`Cl 5
`
`
`
`Incorporated and Principal Place
`ofBuslness In Another State
`Citizen or Subject ofa
`D 3
`CI
`3
`Foreign Nation
`El
`6
`D 6
`
`it Coun
`Forei
`..
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`_
`
`IV NATURE OF SUIT (Place an "X" In One Bax Only)
`7
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`I S
`~'-.; .1‘ 9 R ,
`
`0 U0 Insurance
`, PERSONAL INJURY
`PERSONAL INJURY
`0 120 Marine
`D 310 Airplane
`D 365 Personal Injury -
`D 130 Miller Act
`Cl 315 Airplane Product
`ProduCtLiabiiity
`CI 140 Negotiable Instrument
`Liability
`(3 367 Health Care/
`I3 150 Recovery ofoverpayment
`Cl 320 Assault, Libel &
`Pharmaceutical
`& Enforcement ofludgment
`Slander
`Personal Iniury
`C] 151 Medicare Act
`El 330 I'ederniEmployers'
`Product Liability
`D 152 Recovery ofDefaulted
`Liability
`D 368 Asbestos Personal
`Student Loans
`Cl 340 Marine
`Injury Product
`7 ‘-411 9 '
`(Excludes Veterans)
`Cl 345 Marine Product
`Liability
`El 153 Recovery ofOverpayment
`Liability
`PERSONAL PROPERTY D 710 Fair Labor Standards
`ofVcterun's Benefits
`D 350 Motor Vehicle
`0 370 Other Fraud
`Act
`[3 160 Stockholders’ Suits
`[1 355 Motor Vehicle
`El 371 Truth in Lending
`Cl 720 Labor/Management
`Cl 190 Other Contract
`Product Liability
`D 380 OlherPersonal
`Relations
`D 195 C0nt1'nctProductLinbility
`Cl 360 OtherPersonal
`Property Damage
`Cl 740 Railway Labor Act
`El 196 Franchise
`Injury
`Cl 385 Property Damage
`Cl 751 Family and Medical
`D 362 Personal Injury -
`Product Liability
`Leave Act
`Cl 790 Other Labor Litigation
`D 791 Employee Retirement
`Income Security Act
`
`
`
`
`
`
`
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`
`’
`
`.
`
`..
`
`"1'}P.ROFER .
`D 210 Land Condemnation
`CI 220 Foreclosure
`0 230RentLease & Ejectment
`D 240 Torts to Land
`E] 245 TortProdnctLiabllity
`Cl 290 All Other Real Property
`
`.
`
`
`
`
`
`
` I . * » »
`'
`.
`Hnbens Co
`D 440 Otbe
`El 463 Alicn Detainee
`CI 44] Voting
`D 510 Motions to Vacate
`El 442 Employment
`Sentence
`CI 443 Housing
`D 530 General
`Accommodations
`Cl 445 Amer. \v/Disabilities - Cl 535 Death Penalty
`Employment
`Other:
`El 446 An1er.\vlDisabilities - Cl 540 Mandamus & Other
`Other
`El 550 Civil Rights
`D 448 Education
`El 555 Prison Condition
`C) 560 Civil Detainee -
`Conditions of
`Confinement
`
`' TION
`IIVINII
`1’
`D 462 Naturalization Application
`D 465 Other Immigration
`Actions
`
`V. ORIGIN (Place an "X" In One Box Only)
`El 6 Multidistrict
`I3 4 Reinstated or D 5 Transferred from
`3 Remanded from
`)8! 1 Original
`13 2 Removed fi'om
`S
`C
`‘
`Litigation
`Reopened
`Anotiher District
`Appellate Court
`Proceeding
`State Court
`
`
`Cite the U.S. Civil Statute under which on are filing (Do not cltejrrrlrdlcllorial statutes rm/m diversion:
`15 U.S.C.
`1114,15 U.S.C.
`125
`VI. CAUSE OF ACTION
`‘
`_
`Brief description ofcausc:
`_
`
`Trademark Infringement and Unfair Competition
`
`
`
`CHECK YES only if demanded in complaint:
`D CHECK IF THIS IS A CLASS AC1‘ION
`DEMAND S
`VII. REQUESTED IN
`
` COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: D Yes )3 No
`
`
`
`VIII. RELATED CASE(S)
`IF ANY
`
`El
`
`
`
`(See/nrlrncllans):
`
`JUDGE
`
`1
`
`DOCKET NUMBER
`
`FOR OFFICE USE ONLY
`
`
`
`
`
`RECEIPT ll
`
`AMOUNT
`
`APP ‘V
`
`'
`
`JUDGE
`
`MAG. JUDGE
`
`D 422 Appeal 23 USC l53
`
`.
`.
`D 525 DrugRelnted Seizure
`ofProperty 21 USC 881 D 423 Withdrawal
`U 690 Other
`28 USC 157
`
`CI 375 False Claims Act
`
`U 400 State Reapportionment
`U 410 Antitrust
`Cl 430 Banks nndBtmking
`$".i‘t(tfl"J'SWT)'BTT,[tT‘[‘J'J3% D 450 Commerce
`El 820 Copyrights
`D 460 Deportation
`D 830 Patent
`0 470 Racketeer Influenced and
`8 840 Trademark
`Corrupt Organizations
`CI 480 Consumer Credit
`‘' KIWNWi D 490 CubielSutTV
`El 86] H1A(l395ft)
`D 850 Securities/Comrnodities/
`II! 862 Black Lung (923)
`Exchange
`C! 863 DIWC/DIWW (405(g))
`Cl 890 Other Statutory Actions
`C] 864 SSID Title XVI
`D 891 Agricultural Acts
`D 865 RSI (405(g))
`D 893 EnvironmentrtlMntters
`El 895 Freedom oflnfonnation
`Act
`D 895 Arbitration
`Cl 899 Administrative Procedure
`Actlkeview or Appeal of
`Agency Decision
`0 950 Constitutionality of
`State Statutes
`
`.
`r’
`'
`“
`‘
`v:-I
`0 870 Taxes (U.S. Piaintitl"
`or Defendant)
`Cl 871 IRS—Third Party
`26 USC 7609
`
`

`
`Case 4:14-cv—00151 Document 12 Filed in TXSD on 01/22/14 Page 1 of 2
`
`EXHIBIT 1
`
`
`

`
`
`
`
`
`F i
`
`‘[:I,
`I:
`
`IIII
`
`,
`
`If
`I‘
`%VI
`‘I,
`
`I3I
`
`I
`
`Case 4:14-cv-00151 Document 1-2 Filed in TXSD on 01/22/14 Page 2 of 2
`
`W/mmn §£>tatIzs4 of Qatar’
`fllriniteh étates itaatent amt: wrahetnark ®£fiIte
`A
`
`WINSTROL
`
`DYNAMIC SPORTS NUTRITION, LLC (TEXAS LIMITED LIABILITY COMPANY)
`Reg, No, 4,373,021
`I330 POST OAK BLVD., STE. 2900
`_
`Reglstered July 23, 2013 HOUSTON, TX 77050
`
`Int. Cl.: 5
`
`FOR: DIETARYAND NUTRITIONAL SUPPLEMENTS, IN CLASS 5 (U.S. CLS. 6, 18.44. 46,
`51 AND 52).
`
`TRADEMARK
`
`FIRST USE 702012; IN COMMERCE 7-0-2012.
`
`PRINCIPAL REGISTER
`
`THE MARK CONSISTS op STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
`TICULAR FONT, STYLE, SIZE, OR COLOR.
`
`SN 85-365,550, FILED 7-7-2011.
`
`JOHN DALIER, EXAMINING ATTORNEY
`
`
`
`Alllng Dllrdvrullhe UIfl!dS|IluPAlml IndTndumrt0mc:
`
`

`
`
`
`5 3
`
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`i,
`E,
`
`
`
`Case 4:14-cv-00151 Document 1-3 Filed in TXSD on 01/22/14 Page 1 of 2
`
`EXHIBIT 2
`
`

`
`Case 4:14-cv-00151 Document 1-3 Filed in TXSD on 01/22/14 Page 2 of 2
`
`wfirmg states ufgmer
`ifliniteh étatezi iiaatent atth flliraixemark QBIMB
`
`ANDROL
`
`DYNAMIC SPORTS NUTRITION, LLC (TEXAS LIMITED LIABILITY COMPANY)
`Reg. No. 4,448,500
`1330 POST OAK BLVD., STE. 2900
`_
`Reglstered Dec. 10, 2013 HOUSTON, TX 77056
`
`Int. Cl.: 5
`
`FOR: DIETARYAND NUTRITIONAL SUPPLEMENTS, IN CLASS 5 (US. CLS. 6, 18, 44, 46,
`51 AND 52).
`
`TRADEMARK
`
`-
`
`FIRST USE 8-22-2013; IN COMMERCE 8‘22"2()13A
`
`PRINCIPAL REGISTER
`
`THE MARK CONSISTS OF STANDARD CHARACTERS WJTI-lOU’1' CLAIM To ANY PAR-
`TICULARFONT, STYLE, SIZE, OR COLOR.
`
`OWNER OF U.S. REG. NO. 4,126,968.
`
`SN 85-598,512, FILED 4 16-2012.
`
`SUSAN RICHARDS, EXAMINING ATIORNEY
`
`
`
`¢&AA.xI£&z,¢
`Comnfiuiunar fur Tndcmarln nfthe
`United States Patent and 'I‘mdcma.tk Ollico
`
`I,I
`1.I
`I:V
`
`
`
`

`
`Case 4:14-cv—OO151 Document 1-4 Filed in TXSD on 01/22/14 Page 1 of 2
`
`EXHIBIT 3
`
`

`
`Case 4:14-cv—OO151 Document 1-4 Filed in TXSD on 01/22/14 Page 2 Of 2
`
`qfimtgh QWIBE Hf glam
`ifiniteh étates ifiateut arm Olrahetnarls Qfitfize
`
`TRENB OLONE
`
`DYNAMIC SPORTS NUTRITION, LLC (TEXAS LIMITED LIABILITY COMPANY)
`Reg. No. 4,126,929
`1330 POST OAK BLVD., STE. 2900
`.
`Regxstered Apr. 10, 2012 HOUSTON, TX 77056
`
`Int. Cl.: 5
`
`FOR: DIETARYAND NUTRITIONAL SUPPLEMENTS, IN CLASS 5 (U.S. CLS. 6, 18, 44, 46,
`51 AND 52).
`
`TRADEMARK
`
`FIRST USE 1-1-2012; IN COMMERCE 1.1~2o12.
`
`PRINCIPAL REGISTER
`
`THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
`TICULARFONT, STYLE, SIZE, OR COLOR.
`
`SN 8S—340,039, FILED 6-7-2011.
`
`JANICE KIM, EXAMINING ATTORNEY
`
`
`
`Dlmlor oflhe Unlkd Slates hunt and Tmdemmk Office
`
`
`
`
`
`Au‘-A-4»«~«-«mm;A—«ma—,.~:,«.«.~4.::;:..~:...,.»,.~.~,«»,-—.———~-»-.;‘-E-~.—.—,—---,~——.««
`
`
`
`
`
`

`
`Case 4:14-cv-00151 Document 1-5 Filed in TXSD on 01/22/14 Page 1 of 2
`
`EXHIBIT 4
`
`

`
`Case 4:14-cv—O015l Document 1-5 Filed in TXSD on 01/22/14 Page 2 of 2
`
`“ma étates’ of glam.’
`Zflinitzh §>tates ifiatent mm ’<Erab2mark Qbtfice
`
`TREN 75
`
`DYNAMIC SPORTS NUTRITION, LLC (TEXAS LIMITED LIABILITY COMPANY)
`Reg. No. 4,140,455
`1330 POST OAK BLVD., STE. 2900
`_
`Reglstered May 8, 2012 HOUSTON, TX 77056
`
`In t. CL: 5
`
`FOR: DIETARYAND NUTRITIONAL SUPPLEMENTS, IN CLASS 5 (US. CLS. 6, 18, 44, 45,
`51 AND 52).
`
`TRADEMARK
`
`FIRST USE 10-1-2005; IN COMMERCE 101-2005.
`
`SUPPLEMENTALREGISTER THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
`TICULARFONT, STYLE, SIZE, OR COLOR.
`
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "75", APART FROM THE MARK
`AS SHOWN.
`
`SER. N0. 85-276,l64, FILED P.R. 3-24-20] 1; AM. S.R. 12-28-2011.
`
`SEAN CROWLEY, EXAMINING ATTORNEY
`
`
`
`Dlmcloruflkc Unilnl Slnlcs Paltnl nnd Tmdemmk Omen
`
`

`
`Case 4:14-cv-00151 Document 1-6 Filed in TXSD on 01/22/14 Page 1 of 2
`
`EXHIBIT 5
`
`

`
`Case 4:14—cv-OO15L1 Document 1-6 Filed in TXSD on 01/22/14 Page 2 of 2
`
`rwmgn étatesz at am“.
`Giniteb fitatw 3Batent mm flfirahentarls ®tfine
`
`CLEN
`
`Reg. No. 4,416,649
`
`DYNAMIC spomrs NUTRITION, LLC (TEXAS LIMITED LIABILITY COMPANY)
`1330 POST OAK BLVD., STE. 2900
`Registered Oct. 15, 2013 HOUSTON,’I'X77056
`
`Int. C1,: 5
`
`FOR: DIETARY AND NUTRITIONAL SUPPLEMENTS, IN CLASS 5 (us. CLS. 5, 18,44, 46,
`51 AND 52).
`
`TRADEMARK
`
`FIRST USE 101-2005; IN COMMERCE l0—1-2005.
`
`PRINCIPAL REGISTER
`
`THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
`TICULAR FONT, STYLE, SIZE, OR COLOR.
`
`SER. NO. 85«278,940, FILED 3-28-2011.
`
`SEAN CROWLEY, EXAMINING ATTORNEY
`
`
`
`Dqwtynimturoll.‘-eUrJ(edShIes rum IadTn.deumZ Ofike
`
`

`
`§EI EEL
`
`
`
`
`
`Case 4:l4—cv-00151 Document 1-'7 Filed in TXSD on 01/22/14 Page 1 of 2
`
`EXHIBIT 6
`
`

`
`iII
`
`Case 4:14~cv-00.151 Document 1-7 Filed in TXSD on 01/22/14 Page 2 of 2
`
`“IUZIJGiniteh étatesx 1Batent anh flfirahentarh Qbtfice
`
`DECA 200
`
`Reg. No. 4,141,246
`
`Registered May 15, 2012
`
`DYNAMIC SPORTS NUTRITION, LLC (TEXAS LIMITED LIABILITY COMPANY)
`1330 POST OAK BLVD., STE. 2900
`HOUSTON, TX 77056
`
`Int. Cl.: 5
`
`TRADEMARK
`
`FOR: DIETARY AND NUTRITIONAL SUPPLEMENTS, IN CLASS 5 (U.S. CLS. 6, 18, 44, 46,
`51 AND 52).
`
`FIRST USE 10-1-2005; IN COMMERCE I0-lv2005.
`
`PRINCIPAL REGISTER
`
`THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR~
`TICULAR FONT, STYLE, SIZE, OR COLOR.
`
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHTTO USE "200", APART FROM THE MARK
`AS SHOWN.
`
`SER. NO. 85-277,26l,FILED 3-25-2011.
`
`SEAN CROWLEY, EXAMINING ATTORNEY
`
`
`
`Dlsvcmr oftho Unltul Slmts P.\lcn\ and Trdckwulk 0fiIcc
`
`

`
`Exhibit "B"
`
`
`

`
`Case 4:14-cv-00151 Document 14 Filed in TXSD on 02/27/14 Page 1 of 12
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`DYNAMIC SPORTS NUTRITION, LLC,
`
`Plaintiff,
`
`vs.
`
`IBUY BODY, LLC (a Florida LLC), PHILLIP
`BIRTASEVIC d/b/a STACKLABS, and
`
`IBUY BODY, LLC (a Wyoming LLC)
`
`Defendant.
`
`CAO’.>0O9GOO60'Ja0o@300:<AOOC47JOOOOO'J
`
`CIVIL ACTION NO. 4: 14-cv-00151
`
`PLAINTIFF'S FIRST AMENDED COMPLAINT
`
`Dynamic Sports Nutrition, LLC ("DSN" or "Plaintiff') files this First Amended Complaintl
`
`against IBUY BODY, LLC (a Florida limited liability company), Phillip Birtasevic d/b/a
`
`STACKLABS, and IBUYBODY, LLC (a Wyoming limited liability company) (collectively
`
`"Defendants") and would respectfully show the Court as follows:
`
`PARTIES
`
`l.
`
`Plaintiff DSN is a Texas limited liability company having an address of 1330 Post
`
`Oak Blvd., Ste. 2900, Houston, Texas 77056.
`
`2.
`
`Upon i