Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1039316
`03/02/2020
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92072717
`
`Party
`
`Correspondence
`Address
`
`Defendant
`USPlabs, LLC
`
`BRUCE STECKLER
`STECKLER GRESHAM COCHRAN
`12720 HILLCREST ROAD, SUITE 1045
`DALLAS, TX 75230
`UNITED STATES
`bruce@stecklerlaw.com, braden@stecklerlaw.com
`972-387-4040
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Other Motions/Papers
`
`Braden Wayne
`
`braden@stecklerlaw.com, bruce@stecklerlaw.com, jamie@stecklerlaw.com
`
`/s/ Braden Wayne
`
`03/02/2020
`
`Attachments
`
`2019-11-05 Trial Court Complaint with Jury Demand.PDF(2800998 bytes )
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 1 of 22 PageID 1 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 1 of 22 PageID 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`Plaintiff,
`
`HI-TECH PHARMACEUTICALS, INC.,
`
`
`
`v.
`
`USPLABS, LLC, JACOBO GEISSLER,
`JONATHAN DOYLE, MODERN SPORTS
`NUTRITION, LLC AND DOES 1-100,
`
`
`
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`Case No.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT WITH JURY DEMAND
`
`
`
`
`
`
`
`
`Plaintiff Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”), for its Complaint with Jury Demand
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`against the above-named Defendants USPLabs, LLC, Jacobo Geissler, Jonathan Doyle and
`
`Modern Sports Nutrition, LLC (collectively “Defendants”), alleges the following:
`
`NATURE OF THE ACTION
`
`1.
`
`This action is for federal unfair competition under 15 U.S.C. § 1125, unfair
`
`competition under Texas common law, tortious interference with prospective business
`
`relationships, injury to business reputation arising under Texas Business & Commerce Code, Tex.
`
`Bus. & Com. Code Ann. § 16.29, as well as relief under the Declaratory Judgment Act, 28 U.S.C.
`
`§§ 2201 and 2202.
`
`THE PARTIES
`
`2.
`
`USPlabs, LLC (“USP Labs”) is a corporation organized under the laws of the State
`
`of Texas with a principal place of business at 10761 King William Drive, Dallas, Texas 75220,
`
`and may be served with process at that address.
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 2 of 22 PageID 2 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 2 of 22 PageID 2
`
`3.
`
`Jacobo Geissler (a.k.a. Jaco Geissler) was the co-founder and CEO of USP Labs.
`
`On information and belief, Geissler resides at 8001 Tulane Street, Dallas, Texas 75225 and may
`
`be served with process at that address.
`
`4.
`
`Jonathan Doyle was the co-founder, co-owner and president of USP Labs. On
`
`information and belief, Doyle resides at 4723 Royal Lane, Dallas, Texas 75229 and may be served
`
`with process at that address.
`
`5.
`
`Modern Sport Nutrition, LLC (“Modern Sport Nutrition”) is a corporation
`
`organized under the laws of Delaware with a principal place of business in 515 Braddock Ave,
`
`Turtle Creek, PA 15145, and may be served with process at that address.
`
`JURISDICTION AND VENUE
`
`6.
`
`This Court has jurisdiction over the subject matter of this action pursuant to 28
`
`U.S.C. §§ 1331 and 1338, and under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
`
`This Court has jurisdiction over the subject matter of the common law trademark infringement,
`
`common law unfair competition, tortious interference with prospective business relationships and
`
`injury to business reputation claims pursuant to 28 U.S.C. § 1338(b) and supplemental jurisdiction
`
`under 28 U.S.C. § 1367.
`
`7.
`
`USP Labs is subject to personal jurisdiction in because: (1) it is a Texas corporation;
`
`(2) regularly conducts business within and has had systematic and continuous contacts with Texas;
`
`(3) the activities giving rise to Hi-Tech’s claims occurred, at least in part, within Texas; and (4)
`
`Hi-Tech has been damaged in Texas by USP Labs’ tortious conduct.
`
`8.
`
`The court has jurisdiction over the remaining Defendants in that each either resides
`
`in Texas, has committed acts within Texas and this judicial district giving rise to this action, and
`
`has established minimum contacts with the forum through USP Labs and otherwise such that the
`
`
`
`2
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 3 of 22 PageID 3 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 3 of 22 PageID 3
`
`exercise of jurisdiction over these Defendants would not offend traditional notions of fair play and
`
`substantial justice.
`
`9.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), 1391(c), and
`
`1400(b), for at least the reasons that the Defendants reside in this judicial district, have committed
`
`acts within this district giving rise to this action, do business in this district through USP Labs and
`
`otherwise and are providing services in this district.
`
`GENERAL ALLEGATIONS
`
`USP Labs and its Principals Were Criminally Indicted for Their Dietary Supplements
`
`10.
`
`In November 4, 2015, the United States Attorney’s Office for the Northern District
`
`of Texas filed Criminal Indictment 3-15-CR-494 against USP Labs and its principals Jacobo
`
`Geissler, Jonathan Doyle, Matthew Hebert, Kenneth Miles and Cyril Willson. Exhibit A. The
`
`entities responsible for the manufacturer of USP Labs’ products, S.K. Laboratories, Inc. (“S.K.
`
`Laboratories”) and Sitesh Patel, were also named as defendants in the indictment.
`
`11.
`
`The case against USP Labs and the other indicted defendants involved the workout
`
`and weight loss supplements “Jack3d” and “OxyElite Pro.”
`
`12.
`
`According to the indictment, USP Labs and its principals engaged in a conspiracy
`
`to import ingredients from China using false certificates of analysis and false labeling and then
`
`lied about the source and nature of those ingredients after putting them in the products.
`
`13.
`
`USPLabs and its principals told its retailers and wholesalers that it used natural
`
`plant extracts in Jack3d and OxyElite Pro, when in fact, they were using a synthetic stimulant
`
`manufactured in a Chinese chemical factory.
`
`14.
`
`The indictment also alleged that USP Labs and the other indicted defendants sold
`
`some of their products without determining whether they would be safe to use when they knew of
`
`studies that linked the products to liver toxicity.
`3
`
`
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 4 of 22 PageID 4 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 4 of 22 PageID 4
`
`15.
`
`According to the indictment, USP Labs put out several versions of the product
`
`OxyElite Pro, including a misbranded version called “Advanced Formula,” which was recalled in
`
`2013 in the wake of an investigation by the Food and Drug Administration (“FDA”) into whether
`
`the supplement caused liver injuries in consumers.
`
`16.
`
`USP Labs and its principals informed FDA in October 2013 that it would stop
`
`distribution of OxyElite Pro after the product had been implicated in the outbreak of liver injuries.
`
`17.
`
`Despite this promise, USP Labs engaged in a surreptitious, all-hands-on-deck effort
`
`to sell as much of the product as it could as quickly as possible.
`
`18.
`
`The counts against USP Labs and its principals included Wire Fraud, Conspiracy
`
`to Commit Wire Fraud, Obstruction of an Agency Proceeding, Conspiracy to Introduce
`
`Misbranded Food, Instruction of Adulterated Dietary Supplement Dietary Supplements and
`
`Conspiracy to Commit Money Laundering.
`
`19.
`
`A Superseding Indictment was filed on January 5, 2016 with allegations
`
`substantially similar to those in the original indictment in all relevant respects. Exhibit B.
`
`20.
`
`Over various periods of time, USP Labs purported to hold federal trademark
`
`registrations for “USPlabs,” U.S. Registration No. 3,954,592; “Jack3d,” Registration No.
`
`4,372,454; “USPlabs Jack3d,” Registration No. 3,955,069; “Jack3d Micro,” Registration No.
`
`4,372,432, “OxyElite Pro,” Registration No. 3,902,660; and “Modern BCAA,” Registration No.
`
`4,324,549.
`
`21.
`
`On August 18, 2017, the registration for the trademark “OxyElite Pro” was
`
`cancelled because USP Labs failed to file a Declaration of Use and/or Excusable Nonuse under §
`
`8 of the Trademark Act.
`
`
`
`4
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 5 of 22 PageID 5 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 5 of 22 PageID 5
`
`USP Labs and its Principals Pleaded Guilty to Conspiracy to Introduce Misbranded Food
`
`22.
`
`On February 28, 2019, all of the indicted defendants who played key roles in
`
`developing, manufacturing, or marketing the products Jack3d and OxyElite Pro (distributed by
`
`USP Labs) pleaded guilty to introducing misbranded food into interstate commerce with the intent
`
`to defraud or mislead. Exhibit C.
`
`23.
`
`Jonathan Doyle, the president of USP Labs, pleaded guilty to conspiracy to
`
`introduce misbranded food into interstate commerce.
`
`24.
`
`Jacobo Geissler, the CEO of USP Labs, pleaded guilty to conspiracy to introduce
`
`misbranded food into interstate commerce.
`
`25.
`
`Cyril Willson and Matthew Hebert pleaded guilty to introducing misbranded food
`
`into interstate commerce with the intent to defraud or mislead.
`
`26.
`
`Sitesh Patel (vice president of S.K. Laboratories), pleaded guilty to conspiracy to
`
`introduce misbranded food into interstate commerce and to the introduction of misbranded food
`
`into interstate commerce.
`
`27.
`
`In pleading guilty, Doyle, Geissler, and Patel admitted that they imported
`
`substances with false and misleading labeling in part to avoid law enforcement and regulatory
`
`agency attention. Willson and Hebert admitted that they helped to cause a dietary supplement to
`
`be shipped with false labeling regarding the ingredients it contained.
`
`28.
`
`Under such circumstances, the use of any trademarks associated with the products
`
`accused in the indictment was not lawful use in United States commerce.
`
`As Part of a Plea Agreement USP Labs Agreed Not to Engage in Business Operations After
`May 28, 2019 and Not to Transfer any Corporate Trademarks at Any Time
`
`29.
`
`In a Plea Agreement dated February 28, 2019, USP Labs agreed to cease all
`
`business activities within ninety (90) days or by May 28, 2019:
`
`
`
`5
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 6 of 22 PageID 6 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 6 of 22 PageID 6
`
`USP Labs agrees to cease all business activities within 90 days of the entry of this plea
`agreement, and immediately begin the liquidation of inventory. USP Labs will notify the
`government of the case assets accrued following the winding down of the company.
`
`Exhibit C, ¶ 7. (emphasis added).
`
`30.
`
`Under these terms, USP Labs is precluded from marketing or selling any dietary
`
`supplements.
`
`31.
`
`The products of USP Labs can longer be purchased on its interactive commercial
`
`website, www.usplabsdirect.com.
`
`32.
`
`Since at least June 24, 2019, USP Labs’ website has been replaced with a single
`
`page containing a USP Labs graphic and a statement reading “USPlabs is not affiliated with, and
`
`its products are not endorsed by, the United States Pharmacopeia, Rockville, MD.” Exhibit D.
`
`33.
`
`As part of the plea agreement, USP Labs agreed not to assign or otherwise transfer
`
`any of its trademark rights:
`
`As part of the ceasing business, USP Labs agrees not to sell, transfer, lease or
`otherwise alienate the company’s name or other trademarks at any time.
`
`Exhibit C, ¶ 7.
`
`34.
`
`These terms, coupled with the terms that prohibit USP Labs from conducting any
`
`business, preclude USP Labs from using or maintaining its trademarks in U.S. commerce in
`
`association with any dietary supplements and from assigning them to a third party for this purpose.
`
`Hi-Tech’s Products, Marketing and Trademarks
`
`35.
`
`Plaintiff Hi-Tech is corporation organized and existing under the laws of the State
`
`of Georgia, with its principal place of business located at 6015-B Unity Drive, Norcross, Georgia,
`
`30071.
`
`36.
`
`Hi-Tech is a leading manufacturer of dietary supplement products and sells,
`
`distributes, and markets its products throughout the United States and to other countries.
`
`
`
`6
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 7 of 22 PageID 7 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 7 of 22 PageID 7
`
`37.
`
`Hi-Tech spends enormous resources to protect and enforce its extensive intellectual
`
`property, which includes a robust trademark portfolio in the United States and abroad.
`
`38.
`
`Hi-Tech’s products are made available to the public through numerous channels,
`
`including traditional “brick-and mortar” stores, online retailers, and its own interactive website,
`
`https://hitechpharma.com/.
`
`39.
`
`40.
`
`Hi-Tech extensively promotes its products online and through social media.
`
`Consumers can access Hi-Tech’s social media such as Facebook, Instagram and
`
`Twitter, directly through its website and elsewhere.
`
`41.
`
`Tens of thousands of consumers receive information about Hi-Tech’s existing and
`
`anticipated product offerings through social media as reflected by its substantial audience
`
`following. For example, Hi-Tech has over 50,000 Facebook followers and over 140,000 Instagram
`
`followers.
`
`42.
`
`Following the plea agreement by USP Labs, and in reliance thereon, Hi-Tech filed
`
`the following intent to use trademark applications:
`
`a. OXYELITE PRO, Serial No. 88/352722, filed March 22, 2019, in connection
`
`with “Dietary and nutritional supplements, in International Class 005 (allowed).
`
`b. USP LABS, Serial No. 88/595,250, filed August 27, 2019, in connection with
`
`“Dietary and nutritional supplements,” in International Class 005.
`
`c. YOK3D, Serial No. 88/595,244, filed August 27, 2019, in connection with
`
`“Dietary and nutritional supplements,” in International Class 005.
`
`d. SUPERCISSUS, Serial No. 88/595,235, filed August 27, 2019, in connection
`
`with “Dietary and nutritional supplements,” in International Class 005.
`
`
`
`7
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 8 of 22 PageID 8 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 8 of 22 PageID 8
`
`e. PINK MAGIC, Serial No. 88/595,232, filed August 27, 2019, in connection
`
`with “Dietary and nutritional supplements,’ in International Class 005.
`
`f. JACK3D, Serial No. 88/595,228, filed August 27, 2019, in connection with
`
`“Dietary and nutritional supplements,” in International Class 005.
`
`g. MODERN BCAA, Serial No. 88/639,582, filed October 2, 2019, in connection
`
`with “Dietary and nutritional supplements,” in International Class 005.
`
`43.
`
`Following the plea agreement by USP Labs, Hi-Tech began marketing the products
`
`“Jack3d,” “OxyElite Pro” and “Modern BCAA” (as shown below).
`
`Jack3d·•
`~-.......... ...,
`
`I ""Wl&Boz(251lg)
`..,_
`
`OxyELITE Pro
`itii9Uli•M·1UM
`j University Studied
`
`
`
`
`
`
`
`
`
`ModernBCAAG 1
`I
`~,,_,.,.,_,
`
`- ----··-·-·-
`
`I
`
`
`
`44.
`
`Consistent with its established marketing practices, Hi-Tech promoted the marks
`
`USPLabs, Jacked3d and OxyElite and the associated products online, including the social media
`
`platforms Facebook and Instagram.
`
`UPSLabs Violates the Plea Agreement, Conducts Business Operations and Asserts
`Abandoned Trademarks Against Hi-Tech
`
`45.
`
`On October 25, 2019, Hi-Tech received a notice from Instagram that the entirety of
`
`its content on its site had been removed. Exhibit E. According to the notice, the complaining
`
`party was USPLabs Direct, LLC the purported owner of rights in the trademark “USPlabs.” The
`
`attorney who lodged the complaint was attorney Braden Wayne at braden@stecklerlaw.com.
`
`
`
`8
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 9 of 22 PageID 9 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 9 of 22 PageID 9
`
`46.
`
`The same day, Hi-Tech received another notice that certain content had been
`
`removed from its Facebook page. Exhibit F. According to the notice, the complaining party was
`
`USPLabs Direct identified as the purported owner of rights in the trademark “USPlabs.” The
`
`attorney who lodged the complaint was attorney Braden Wayne at braden@stecklerlaw.com.
`
`47.
`
`Enforcing USP Labs’ trademarks against third-parties such as Hi-Tech, including
`
`issuing “take down” requests to social media sites, is in direct violation of the plea agreement to
`
`“cease all business activities” and is a misguided effort to assert invalid, abandoned trademarks to
`
`garner goodwill on behalf of a company that has no product base and is no longer in business.
`
`Hi-Tech’s Extensive Efforts to Get Its Social Media Back Online
`
`48.
`
`According to the notifications issued from Instagram and Facebook, in the event
`
`Hi-Tech believed the content was removed in error, Hi-Tech should contact the complaining party
`
`in an effort to resolve the issue. According to the Instagram notice, if an agreement is reached to
`
`restore the reported content, the contacting attorney can email Instagram with the consent and
`
`include the report number.
`
`49.
`
`Given the urgency of the matter, counsel for Hi-Tech attempted to contact attorney
`
`Braden Wayne by phone and email the next business day, October 28, 2019, but no response was
`
`received. Exhibit G. In the correspondence, counsel for Hi-Tech made clear that, solely in an
`
`effort to get the social media sites active again, it would agree to temporarily remove the content
`
`that formed the basis of the complaint.
`
`50.
`
`Counsel for Hi-Tech tried again to contact Mr. Wayne on October 29, 2019, but
`
`numerous phone calls and emails were unanswered. Exhibit H. Finally, later that day, Mr. Wayne
`
`answered a phone call from Hi-Tech’s counsel. During this call, counsel for Hi-Tech noted that
`
`the large majority of the content on the social media pages had nothing to do with USP Labs, its
`
`trademarks, its products, or the current dispute. Counsel again indicated that Hi-Tech would be
`9
`
`
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 10 of 22 PageID 10 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 10 of 22 PageID 10
`
`willing to remove the disputed content in exchange for Mr. Wayne contacting Facebook and
`
`Instagram indicating that the pages could be put back online. Nonetheless, Mr. Wayne initially
`
`refused to agree to contact the social media platforms even to restore Hi-Tech’s unaccused social
`
`media postings and indicated on the call that “I’m not sure I want to give up my leverage.”
`
`51. When counsel for Hi-Tech indicated that USP Labs was not permitted under the
`
`plea agreement to engage in any business activities, much less enforcement efforts, and without
`
`the ability to sell any products the trademarks could not be in use in commerce, Mr. Wayne
`
`indicated that, contrary to the plea agreement, USP Labs had the right to enforce and assign its
`
`trademarks.
`
`52.
`
`On October 30, 2019, counsel for Hi-Tech again contacted Mr. Wayne to inquire
`
`whether USP Labs had provided any feedback regarding removing the hold on Hi-Tech’s social
`
`media sites. Exhibit I. Mr. Wayne responded that he “had a lot of hoops to jump through” and
`
`discouraged Hi-Tech from taking legal action under the auspice that it would slow the process.
`
`53.
`
`On October 31, 2019, Mr. Wayne contacted counsel for Hi-Tech and indicated that
`
`USP Labs would agree to a reactivation of the social media accounts “provided that we receive a
`
`written agreement that Hi-Tech will not utilize the offending marks on social media. Those marks
`
`are USPlabs, Jack3d, and USPlabs Jack3d” (emphasis in original). Exhibit J.
`
`54.
`
`Given Hi-Tech’s position that USP Labs had no valid trademark rights and no right
`
`to assert them in the marketplace, it did not wish to (and did not) agree to a permanent cessation.
`
`55.
`
`During a teleconference between counsel held later that day, counsel for Hi-Tech
`
`asked Mr. Wayne to identify the client contact(s) at USP Labs who requested the take downs and
`
`whose permission would be necessary to reinstate the pages. Mr. Wayne refused to identify the
`
`individuals responsible for the assertion of trademark rights except to indicate that the individuals
`
`
`
`10
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 11 of 22 PageID 11 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 11 of 22 PageID 11
`
`in question included multiple people associated with USP Labs. On information and belief, this
`
`includes, but may not be limited to, the individual Defendants named herein.
`
`56.
`
`As a counter-offer to USP Labs’ offer that Hi-Tech never “utilize the offending
`
`marks on social media,” counsel for Hi-Tech proposed a simple email stipulation whereby, in
`
`exchange for reactivation of the Hi-Tech social media accounts, Hi-Tech would immediately
`
`remove the postings which were the subject of the complaints by USP Labs (specifically those
`
`containing USPlabs, Jack3d, and USPlabs Jack3d) pending resolution of the dispute. Counsel for
`
`Hi-Tech immediately sent an email confirming the teleconference and attempting to memorialize
`
`the stipulation. Exhibit J.
`
`57.
`
`On November 1, 2019, counsel for Hi-Tech again contacted Mr. Wayne conveying
`
`his impression that the parties were in agreement, emphasizing that the matter was urgent, and
`
`confirming that no response had been received. Exhibit J. Mr. Wayne responded by indicating
`
`that the stipulation was acceptable to him, but he needed client confirmation. In the interim, Mr.
`
`Wayne requested a copy of the notification Instagram sent to Hi-Tech and counsel for Hi-Tech
`
`immediately provided a copy of Exhibit E. Exhibit K.
`
`58.
`
`Given the delay experienced in dealing with USP Labs directly, on November 4,
`
`2019, counsel for Hi-Tech issued a Counter Submission to Report Numbers 515434222390505
`
`and 425433828174094 directly to Instagram requesting that USP Labs’ complaints be dismissed
`
`and Hi-Tech’s social media sites be put back online for the reasons set forth herein. Exhibit L.
`
`59.
`
`Following Hi-Tech’s submission of the Counter Submission, Mr. Wayne sent an
`
`email to counsel for Hi-Tech conveying that USP Labs had agreed to notify Instagram that it does
`
`not object to the page being active provided that the offending conduct is removed. Exhibit M.
`
`Counsel for Hi-Tech clarified that the stipulation was intended to be an agreement pending a
`
`
`
`11
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 12 of 22 PageID 12 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 12 of 22 PageID 12
`
`resolution, not an agreement by Hi-Tech to permanently refrain from using the identified marks
`
`under any circumstances.
`
`60.
`
`At the time of this filing, Hi-Tech’s Instagram account is still offline which is
`
`causing irreparable harm to Hi-Tech, its business, its trademarks, its products and leading to a loss
`
`of goodwill, customers, market share, consumer confidence and loyalty.
`
`61.
`
`Attempting to preclude Hi-Tech from using trademarks that USP Labs cannot
`
`lawfully use in U.S. commerce, for the benefit of a corporate entity that is not supposed to exist
`
`anymore, is unlawful, inequitable and constitutes multiple violations of the plea agreement.
`
`USP Labs Assigns the Mark “MODERN BCAA” to Modern Sports Nutrition
`Which In Turn Issues a Cease and Desist Letter to Hi-Tech
`
`62.
`
`On May 29, 2019 – one day after USP Labs was obligated to cease operations – it
`
`ostensibly assigned federal trademark Registration No. 4,324,549 for “MODERN BCAA” to
`
`Modern Sports Nutrition. Exhibit N.
`
`63.
`
`This transfer of trademark rights is irreconcilable with the portion of the plea
`
`agreement wherein USP Labs “agrees not to sell, transfer, lease or otherwise alienate the
`
`company’s name or other trademarks at any time.”
`
`64.
`
`On October 23, 2019, Modern Nutrition issued a cease and desist letter to Hi-Tech
`
`asserting its alleged right in “MODERN BCAA,” Registration No. 4,324,549. Exhibit O. Among
`
`other things, Modern Nutrition demands that Hi-Tech cease all use of MODERN BCAA and
`
`expressly abandon its existing trademark application.
`
`65.
`
`Based on the plea agreement, USP Labs is not in possession of any valid
`
`trademarks, is in no position to assert any trademarks associated with any products and has
`
`improperly assigned trademarks that are invalid and non-transferable.
`
`
`
`12
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 13 of 22 PageID 13 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 13 of 22 PageID 13
`
`66.
`
`Accordingly, there is a real, actual and justiciable controversy regarding Hi-Tech’s
`
`rights to use its trademarks in association with dietary supplement products, and maintain its
`
`trademark applications for, inter alia, the trademarks identified herein, including USP LABS,
`
`JACK3D, and MODERN BCAA.
`
`COUNT I
`(Tortious Interference with Prospective Business Relationships)
`
`67.
`
`68.
`
`Hi-Tech incorporates by reference paragraphs 1-66 as if fully set forth herein.
`
`Defendants committed tortious interference with prospective business relationship
`
`under Texas law because there is/was: (1) a reasonable probability that a third party would have
`
`entered into a contractual relationship with Hi-Tech; (2) an independently tortious or unlawful act
`
`by defendants that prevented the relationship from occurring; (3) a conscious desire by the
`
`defendants to prevent the relationship from occurring, or knowledge by the defendants that the
`
`interference was certain or substantially certain to occur as a result of his conduct; and (4) actual
`
`harm or damages suffered by Hi-Tech as a result of the defendant’s interference.
`
`69.
`
`Given Hi-Tech’s use of its social media to market its existing and prospective
`
`products, the number of followers or viewers, and the consummation of sales and other business
`
`that flows therefrom, there is at least a reasonable probability that the followers or viewers of Hi-
`
`Tech’s social media would have purchased products from Hi-Tech or otherwise entered into a
`
`contractual relationship with Hi-Tech.
`
`70.
`
`The activities of Defendants, including the breach of the plea agreement, assertion
`
`of invalid trademarks and other activities complained of herein were unlawful and prevented Hi-
`
`Tech’s customers or potential customers from purchasing product from Hi-Tech.
`
`
`
`13
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 14 of 22 PageID 14 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 14 of 22 PageID 14
`
`71.
`
`Defendants had a conscious desire to prevent Hi-Tech’s customers or potential
`
`customers from purchasing products (and had knowledge that removing Hi-Tech’s social media
`
`was certain or substantially certain to prevent sales.
`
`72.
`
`Hi-Tech experienced actual harm in the form of, inter alia, loss of sales, goodwill,
`
`customers, market share, consumer confidence and loyalty as a result of the defendant’s
`
`interference.
`
`73.
`
`74.
`
`As a result of Defendants’ unlawful acts, Hi-Tech is suffering irreparable harm.
`
`Unless and until Defendants are enjoined by this Court, Defendants will continue
`
`to tortiously interfere with Hi-Tech’s prospective business relationships and cause irreparable
`
`harm to Hi-Tech.
`
`COUNT II
`(Federal Unfair Competition)
`
`75.
`
`76.
`
`Hi-Tech incorporates paragraphs 1-66 as if fully set forth herein.
`
`Hi-Tech’s trademarks set forth herein are inherently distinctive and/or have
`
`acquired secondary meaning through use and promotion.
`
`77.
`
`Defendants, in connection with goods, services, and containers for goods, have used
`
`and are using in commerce words, terms, names, symbols, and devices, and combinations thereof,
`
`and false designations of origin, false and misleading descriptions of fact, and false and misleading
`
`representations of fact, which are likely to cause confusion, and to cause mistake, and to deceive
`
`as to the affiliation, connection, or association of themselves with other persons, as to the origin,
`
`sponsorship, and approval of their goods, services, and commercial activities by other persons, in
`
`violation of 15 U.S.C. § 1125(a)(1)(A).
`
`78.
`
`Defendants, in connection with goods, services, and containers for goods, have used
`
`and are using in commerce words, terms, names, symbols, and devices, and combinations thereof,
`
`
`
`14
`
`

`

`
`
`
` Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 15 of 22 PageID 15 Case 3:19-cv-02639-X Document 1 Filed 11/05/19 Page 15 of 22 PageID 15
`
`and false designations of origin, false and misleading descriptions of fact, and false and misleading
`
`representations of fact, which, in commercial advertising and promotion, misrepresent the nature,
`
`characteristics, qualities, and geographic origin of their or other persons’ goods, services, and
`
`commercial activities, in violation of 15 U.S.C. § 1125(a)(1)(B).
`
`79.
`
`By making unauthorized use of Hi-Tech’s marks, by making false and misleading
`
`representations, and by committing other acts of unfair competition, Defendants are engaging in
`
`false designation, unfair competition, and false advertising in violation of 15 U.S.C. § 1125(a).
`
`80.
`
`Defendants’ unauthorized use of Hi-Tech’s marks and Defendants’ false
`
`advertising are knowing, intentional, and willful in violation of 15 U.S.C. § 1125.
`
`81.
`
`As a result of Defendants’ acts of unfair competition and false advertising, Hi-Tech
`
`is suffering irreparable harm.
`
`82.
`
`Unless and until Defendants are enjoined by this Court, Defendants will continue
`
`to commit acts of unfair competition and false advertising, and will continue to deceive the public
`
`and cause irreparable harm to Hi-Tech.
`
`83.
`
`Hi-Tech is entitled to recover from Defendants their profits, all damages that
`
`Plaintiffs