Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1293976
`06/27/2023
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding No.
`
`92082283
`
`Filing Party
`
`Other Party
`
`Plaintiff
`Belmora LLC
`
`Defendant
`Mprezas Inc
`
`Pending Motion
`
`There is no motion currently pending and no other motion is being filed concur-
`rent with this consent motion.
`
`Attachments
`
`EDVA Complaint.pdf(300242 bytes )
`
`Consent Motion for Suspension in View of Civil Proceeding
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Belmora
`LLC hereby requests suspension of this proceeding pending a final determination of the civil action. Trade-
`mark Rule 2.117.
`Belmora LLC has secured the express consent of all other parties to this proceeding for the suspension re-
`quested herein.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this submission has been served upon all parties, at their ad-
`dress of record by Email on this date.
`Respectfully submitted,
`/jeannettemaurercarmadella/
`Jeannette Carmadella
`jeannette@lutzker.com
`06/27/2023
`
`

`

`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 1 of 28 PageID# 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`
`Civil Action No. 1:22-cv-1100
`
`JURY TRIAL DEMANDED
`
`
`BELMORA, LLC,
`
`
`Plaintiff,
`
`
`v.
`
`MPREZAS INC., OPMX, LLC,
`INTERNATIONAL J&M DISTRIBUTORS
`LLC, MARTHA HERNANDEZ a/k/a
`MARTHA PEREZ, STEFANIA GARCES,
`FERNANDO GARCES a/k/a FERNAN
`CAZADERO a/k/a OCTAVIO GARCES
`CAZADERO,
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT
`
`Plaintiff Belmora, LLC (“Plaintiff” or “Belmora”), by counsel, alleges as follows for its
`
`Complaint against Defendants Mprezas Inc. (“Mprezas”), OPMX, LLC (“OPMX”), International
`
`J&M Distributors LLC (“J&M Distributors”), Martha Hernandez a/k/a Martha Perez
`
`(“Hernandez”), Stefania Garces (“Garces”), Fernando Garces a/k/a Fernan Cazadero a/k/a Octavio
`
`Garces Cazadero (“Garces Cazadero”) (collectively, “Defendants”).
`
`NATURE OF THE SUIT
`
`1.
`
`This is a suit for injunctive relief and damages for Defendants’ brazen and repeated
`
`infringement of Belmora’s valuable intellectual property rights associated with its well-known
`
`pain relief products, sold under the FLANAX trademark. For nearly two decades, Belmora has
`
`sold naproxen sodium tablets—an over-the-counter pain-relief medicine—under the FLANAX
`
`trademark. In addition to its naproxen sodium pain-relief tablets, Belmora now also sells Flanax-
`
`branded liniments (lotions), lozenges (cough drops), and pain-relief patches. Belmora has spent
`
`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 2 of 28 PageID# 2
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`millions to promote its Flanax brand, in part by developing its distinctive—and copyright
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`protected—Flanax packaging. That packaging helps to reach non-English speaking consumers by
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`using pictures and providing bilingual information. Through its decades of investment and hard
`
`work, Belmora has developed trust with U.S. consumers, who rely on the FLANAX trademark as
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`an indicator of quality pharmaceuticals. Belmora now sells Flanax-branded products in thousands
`
`of retailers across the country, and has developed a loyal following, particularly among Spanish-
`
`speaking consumers.
`
`2.
`
`Defendants are a network of related individuals and their closely held corporate
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`entities. They have repeatedly and illegally maneuvered to profit from Belmora’s success by using
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`marks that are confusingly similar to FLANAX to market their own naproxen sodium products.
`
`3.
`
`In 2013, Defendants Garces, Garces Cazadero, Alxigna, Inc. (Mprezas’s
`
`predecessor-in-interest), and OPMX (collectively, the “Flaxen Defendants”) began using the
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`confusingly similar FLAXEN trademark to sell naproxen sodium tablets to consumers in this
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`District and elsewhere. After Belmora sued to enjoin the use of that obviously infringing mark,
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`the Flaxen Defendants assigned all rights in the FLAXEN mark to Belmora and agreed to never
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`again use a trademark that was confusingly similar to Belmora’s FLANAX mark to sell
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`pharmaceutical products (the “prior settlement agreement”).
`
`4.
`
`But the ink on the prior settlement agreement had barely dried before Defendants
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`hatched a new plot to confuse consumers into thinking that Defendants’ naproxen sodium products
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`were made by Belmora or had some relationship with Belmora’s Flanax brand, using a different
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`corporate entity—Defendant Mprezas, Alxigna’s successor-in-interest. Despite their obligations
`
`under the prior settlement agreement, the Flaxen Defendants (Garces, Garces Cazadero, Mprezas
`
`as successor to Alxigna, and OPMX), acting together with Defendant Hernandez (Mprezas’s CEO)
`
`2
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`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 3 of 28 PageID# 3
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`(collectively, the “Desinflamax Defendants”), applied to the U.S. Patent and Trademark Office
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`(“PTO”) in August 2021 to register yet another confusingly similar mark—DESINFLAMAX
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`(Serial No. 90896029)—to sell naproxen sodium (and other pharmaceutical) products to
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`consumers in this District and elsewhere.
`
`5.
`
`In their submission to the PTO, the Desinflamax Defendants applied for only an
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`intent-to-use mark, thereby representing that they were not currently selling products under the
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`DESINFLAMAX mark, though they one day might. But, in proceedings before the Trademark
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`Trial and Appeal Board (“TTAB”) of the PTO, the Desinflamax Defendants admitted that they
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`have already begun selling naproxen sodium products under the DESINFLAMAX mark despite
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`the fact that their PTO application remains pending.
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`6.
`
`The Desinflamax Defendants have made those sales, including to consumers in this
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`District, through a “pharmacy” website (farmaciamex.com) operated by Defendant J&M
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`Distributors, which is run by yet another member of the Garces family and acting together with
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`the Desinflamax Defendants to knowingly infringe Belmora’s intellectual property and confuse
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`consumers in this District and elsewhere.
`
`7.
`
`By using a mark similar to Belmora’s FLANAX mark, Defendants seek to confuse
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`consumers into believing that the Desinflamax Defendants’ products have some relationship to
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`Belmora’s well-known Flanax brand. Seeking to further that confusion, Defendants sell their
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`Desinflamax product using the exact same confusingly similar packaging that they had used for
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`their illegal Flaxen sales, which mirrored key elements of Belmora’s copyrighted Flanax
`
`packaging.
`
`8.
`
`Like the last time around, Defendants’ business plan is to rip-off Belmora’s Flanax
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`brand and goodwill. They are using a mark that is confusingly similar to Belmora’s FLANAX
`
`3
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`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 4 of 28 PageID# 4
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`mark to sell an over-the-counter drug with the same active ingredient (naproxen sodium) in
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`packaging that is strikingly similar to Belmora’s Flanax packaging and is targeted to Spanish-
`
`speaking consumers. The only difference is that they traded one confusingly similar mark
`
`(FLAXEN) for a new confusingly similar mark (DESINFLAMAX). Defendants’ actions plainly
`
`contradict the Flaxen Defendants’ obligations under the prior settlement agreement, infringe on
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`Belmora’s existing FLANAX trademarks and copyrights, and seek to confuse consumers in
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`violation of federal and state unfair-competition and false-advertising laws.
`
`9.
`
`As a result, Belmora is forced once again to sue to halt Defendants’ unauthorized
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`use of its registered trademarks and copyrights, as well as to protect unknowing consumers from
`
`being confused by Defendants’ infringement on Belmora’s FLANAX marks. Belmora asks the
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`Court to order Defendants to disgorge their ill-gotten gains, award damages and attorneys’ fees to
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`Belmora, and permanently enjoin Defendants from using these or any other marks that are
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`confusingly similar to the FLANAX mark to hawk Defendants’ naproxen sodium or other
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`pharmaceutical products.
`
`PARTIES
`
`10.
`
`Plaintiff Belmora is a Virginia limited liability company with its principal place of
`
`business at 3033 Wilson Blvd. Suite 700, Arlington, VA 22201. The sole member of Belmora is
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`a citizen of Virginia. Belmora has sold naproxen sodium tablets, as well as other over-the-counter
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`pain-relief and pharmaceutical products, under the FLANAX marks since 2004.
`
`11.
`
`Defendant Mprezas is a California corporation with its principal place of business
`
`at 470 W. Larch Road, Suite 10, Tracy, CA 95304, that was incorporated in April 2017. Mprezas
`
`is the successor to and the assignee of Alxigna, Inc—a now-defunct company that was a party to
`
`the prior settlement agreement and was run by Defendants Garces and Garces Cazadero. Mprezas
`
`4
`
`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 5 of 28 PageID# 5
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`sells Desinflamax pharmaceutical products through an online store operated by Defendant J&M
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`Distributors and, on information and belief, Mprezas sells Desinflamax products to consumers
`
`located in this District.
`
`12.
`
`Defendant Martha Hernandez a/k/a Martha Perez is an individual who resides in
`
`California and is a citizen of California. From the time of Mprezas’s incorporation in 2017,
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`Hernandez has served as Mprezas’s director, corporate secretary, and agent for service of process.
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`In late 2021, Hernandez also assumed the roles of Chief Executive Officer and Chief Financial
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`Officer of Mprezas. Hernandez participated in or was responsible for the application to register
`
`the DESINFLAMAX mark with the PTO, and, on information and belief, Hernandez participated
`
`in or was responsible for sales in this District.
`
`13.
`
`Defendant Stefania Garces is an individual who resides in California and is a citizen
`
`of California. Garces was the Chief Executive Officer and Chief Financial Officer of Mprezas as
`
`of March 2021. Garces participated in or was responsible for the application to register the
`
`DESINFLAMAX mark with the PTO, despite being a party to the prior settlement agreement. On
`
`information and belief, Garces participated in or was responsible for sales in this District.
`
`14.
`
`Defendant OPMX is a Delaware limited liability company with its principal place
`
`of business at 333 H Street, Suite 5000, Chula Vista, CA 91910. The sole member of OPMX is
`
`Defendant Garces Cazadero. Despite being a party to the prior settlement agreement, OPMX
`
`participated in or was responsible for the application to register the DESINFLAMAX mark with
`
`the PTO. On information and belief, OPMX participated in or directed the sales of Desinflamax
`
`products in this District.
`
`15.
`
`Defendant Fernando Garces a/k/a Fernan Cazadero a/k/a Octavio Garces Cazadero
`
`is an individual who resides in California and is a citizen of California. Garces Cazadero is the
`
`5
`
`

`

`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 6 of 28 PageID# 6
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`Chief Executive Officer and sole member of OPMX. Despite being a party to the prior settlement
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`agreement, Garces Cazadero participated in or was responsible for the application to register the
`
`DESINFLAMAX mark with the PTO, and, on information and belief, Garces Cazadero
`
`participated in or was responsible for sales of Desinflamax in this District.
`
`16.
`
`Non-party Alxigna, Inc. is a now-defunct California corporation that had its
`
`principal place of business at 6200 Stoneridge Mall Road, Suite 300, Pleasanton, CA 94588.
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`Alxigna’s Chief Executive Officer and Chief Financial Officer was Defendant Garces, and
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`Alxigna’s Secretary and sole Director was Defendant Garces Cazadero. In February 2019—
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`roughly six months after signing the prior settlement agreement—Alxigna assigned all of its
`
`trademark rights to Defendant Mprezas. Alxigna is now defunct, has no remaining operations, is
`
`no longer legally permitted to do business, and cannot bring or defend an action in court.
`
`17.
`
`Defendant International J&M Distributors LLC (“J&M Distributors”) is a
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`California limited liability company with its principal place of business at 744 Design Court,
`
`Suite 201, Chula Vista, CA 91911, that was organized in February 2019. On information and
`
`belief, the members of J&M Distributors are citizens of California. The Chief Executive Officer
`
`of J&M Distributors is Mauricio Garces, who is a relative of Defendant Fernando Garces Cazadero
`
`and/or Defendant Stefania Garces (who were both parties to the prior settlement agreement). J&M
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`Distributors operates the “pharmacy” website farmaciamex.com, which sells Desinflamax to
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`consumers in this District.
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`JURISDICTION AND VENUE
`
`18.
`
`The Court has subject-matter jurisdiction over the trademark and copyright claims
`
`in this action pursuant to provisions of the Lanham Act, 15 U.S.C. § 1051, et seq.; 28 U.S.C.
`
`§ 1338(a)-(b); 28 U.S.C. § 1332; and 28 U.S.C. § 1121, and it has subject-matter jurisdiction over
`
`6
`
`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 7 of 28 PageID# 7
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`the state-law trademark and breach-of-contract claims pursuant to 28 U.S.C. § 1332 because the
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`parties are of diverse citizenship and the controversy exceeds $75,000, exclusive of interest and
`
`costs. The Court could also exercise supplemental jurisdiction over the state-law claims pursuant
`
`to 28 U.S.C. § 1367.
`
`19.
`
`The Court has personal jurisdiction over Defendants since each Defendant directly
`
`targets business activities towards consumers in the Eastern District of Virginia, through online
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`sales of Desinflamax to consumers in this District and by selling Desinflamax to a distributor in
`
`this District. In addition, the Court can exercise personal jurisdiction over Defendants Mprezas,
`
`OPMX, Garces, and Garces Cazadero because, in the prior settlement agreement, those Defendants
`
`(and Mprezas’s predecessor-in-interest) agreed that any proceeding brought in connection with
`
`that settlement would be brought in this District.
`
`20.
`
`Venue is proper in this Court for Belmora’s federal and state trademark claims
`
`pursuant to 28 U.S.C. § 1391(b)(2) because Defendants marked and sold Desinflamax products to
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`consumers in this District through online stores and, on information and belief, via a distributor in
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`Alexandria, Virginia, and venue is proper for Belmora’s copyright claims pursuant to 28 U.S.C.
`
`§ 1400(a) because Defendants are subject to this Court’s personal jurisdiction. See Copeland v.
`
`Bieber, No. 2:13CV246, 2013 WL 12145005, at *7 (E.D. Va. Dec. 17, 2013). In addition, the
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`venue-selection provision in the prior settlement agreement makes venue proper as to Defendants
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`Mprezas, OPMX, Garces, and Garces Cazadero.
`
`21.
`
`Venue is proper in this division pursuant to Local Rule 3(B)-(C).
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`7
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`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 8 of 28 PageID# 8
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`FACTS
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`Belmora and Its Flanax Brand
`
`22.
`
`Belmora owns the FLANAX trademark and has been selling Flanax-branded over-
`
`the-counter pharmaceutical products in the United States since 2004.
`
`23.
`
`Belmora’s primary Flanax-branded product is an FDA-approved analgesic tablet (a
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`pain-relief drug) that contains naproxen sodium as its active ingredient. Belmora also sells
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`liniments (lotions), pain-relief patches, and throat lozenges (cough drops) under its FLANAX
`
`mark.
`
`24.
`
`Belmora has federally registered its FLANAX mark with the PTO (U.S. Reg. No.
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`6074745). Belmora also holds federal trademark registrations for BELMORA LLC FLANAX
`
`(U.S. Reg. No. 6074750) and FLANAX MENSTRUAL PAIN RELIEVER (U.S. Reg. No.
`
`5768512) (together with FLANAX, the “FLANAX marks”).
`
`25.
`
`Belmora has also registered its FLANAX mark with the relevant trademark-
`
`registration authorities in the State of California (Cal. Reg. No. 02001111) and the Commonwealth
`
`of Virginia (Va. Reg. No. 13101).
`
`26.
`
`Belmora has used the FLANAX marks exclusively and continuously and has not
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`abandoned them. Its U.S. registrations for the FLANAX marks are valid, subsisting, and in full
`
`force and effect. Belmora’s registrations for the FLANAX marks constitute prima facie evidence
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`of their validity and of Belmora’s exclusive right to use these trademarks pursuant to 15 U.S.C.
`
`§ 1057(b).
`
`27.
`
`The FLANAX marks are valuable assets to Belmora because they represent and
`
`embody a substantial investment of time, money, and goodwill. Belmora has spent millions of
`
`dollars to create, promote, and distribute products under the FLANAX marks in the United States.
`
`8
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`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 9 of 28 PageID# 9
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`28.
`
`Belmora has used distinctive packaging to highlight its mark and ensure that Flanax
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`stands out from other over-the-counter pain-relief drugs. Belmora’s packaging has long featured
`
`a medical pictogram (an image of the human body with a visible skeleton that has potential sources
`
`of pain highlighted), as well as bilingual information in English and Spanish (something that no
`
`other major brand offers). Belmora also used white text on a dark blue background to distinguish
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`its packaging from others in the marketplace.
`
`29.
`
`Belmora copyrighted that package design to protect its distinctive features from
`
`potential imitators. An image of Belmora’s copyrighted Flanax packaging is below.
`
`
`
`30.
`
`Belmora’s investment in the FLANAX marks, along with its distinctive packaging,
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`has yielded substantial commercial success. Belmora’s Flanax is a popular pain-relief medication,
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`particularly among Spanish-speaking Americans, and is available nationwide. Flanax has been
`
`9
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`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 10 of 28 PageID# 10
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`sold in roughly 15,000 retail outlets ranging from large retailers (like Walmart and Target) to much
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`smaller neighborhood shops and bodegas.
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`Defendants’ Scheme to Profit at Belmora’s Expense
`
`31.
`
`The success of Belmora’s Flanax product also caught the attention of Defendants,
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`who saw an opportunity for profit by using knock-offs of Belmora’s FLANAX marks to sell
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`Defendants’ own naproxen sodium products.
`
`32.
`
`Defendants—many of whom are related—have used a variety of different
`
`companies to disguise their actions and achieve their unlawful goal to profit at the expense of
`
`Belmora and to confuse the public.
`
`The First Infringing Mark (FLAXEN) and the Prior Settlement Agreement
`
`33.
`
`In March 2013, non-party Inxigna, Ltd., a closely held company with ties to various
`
`Defendants (including Defendants Garces and Garces Cazadero) filed an application with the PTO
`
`to register the trademark FLAXEN for sales of the same goods that Belmora was selling under its
`
`FLANAX mark: anti-inflammatory and fever-reducing drugs, including naproxen sodium.
`
`34.
`
`In May 2014, the PTO approved that application and placed the FLAXEN mark on
`
`the Principal Register, which lists federally registered trademarks.
`
`35.
`
`After the PTO registered the FLAXEN mark, Defendant Garces Cazadero then
`
`transferred the FLAXEN trademark to Alxigna, Inc.—yet another closely held (and now-defunct)
`
`company run by Defendants Garces and Garces Cazadero.
`
`36.
`
`Through various corporate entities—including Defendants Mprezas, as successor
`
`to and assignee of Alxigna, and OPMX—Garces and Garces Cazadero (together with OPMX and
`
`Mprezas, the “Flaxen Defendants”) sold naproxen sodium products under the FLAXEN mark.
`
`10
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`

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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 11 of 28 PageID# 11
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`37.
`
`The Flaxen Defendants created a substantial risk of consumer confusion because
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`they sold a drug with the same active ingredient (naproxen sodium) using a mark (FLAXEN) that
`
`was substantially similar to Belmora’s already established and well-known FLANAX mark—
`
`indeed, the only differences between the two marks are that the Flaxen Defendants reversed the
`
`last three letters of the FLANAX mark and then swapped the A for an E to get FLAXEN. The
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`similarities between the FLANAX and FLAXEN marks are likely to confuse consumers.
`
`38. Making matters worse, the Flaxen Defendants packaged their infringing Flaxen
`
`products in packaging that bears a striking resemblance to Belmora’s Flanax packaging. Like
`
`Belmora’s packaging, the Flaxen packaging shows a medical pictogram that shows the human
`
`body with a visible skeleton and highlighting over various potential sources of pain. It also features
`
`bilingual information and, of course, the confusingly similar and infringing FLAXEN mark. A
`
`copy of the Flaxen packaging is shown below.
`
`39.
`
`Upon learning of the Flaxen Defendants’ product, Belmora promptly asserted its
`
`rights and, in a November 2017 letter, demanded that those Defendants cease and desist from
`
`infringing on Belmora’s FLANAX mark through the sales of Flaxen-branded products.
`
`
`
`11
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`40.
`
`After the Flaxen Defendants failed to stop their unlawful actions, Belmora sued for
`
`trademark infringement, unfair competition, and false advertising in this District. Belmora, LLC
`
`v. Alxigna, Inc., et al., No. 1:18-cv-00384 (E.D. Va. filed Apr. 3, 2018) (the “prior lawsuit”).
`
`41.
`
`After defaulting, the Flaxen Defendants, and other related entities entered into the
`
`prior settlement agreement with Belmora in August 2018. In exchange for Belmora agreeing to
`
`dismiss the prior lawsuit, the Flaxen Defendants agreed to assign Belmora all rights to the
`
`FLAXEN mark and “not to use or apply for in the United States any trademark application
`
`containing the formative ‘F-L-A-X,’ ‘F-L-A-X-E-N,’ ‘F-L-A-N-A-X’ or any other confusingly
`
`similar name or trademark with the FLANAX Marks in connection within International Class 5,
`
`‘Pharmaceuticals.’” A copy of the prior settlement agreement is attached as Exhibit A.
`
`The Second Infringing Mark (DESINFLAMAX)
`
`42.
`
`Instead of stopping their pattern of infringement, unfair competition, and false
`
`advertising (as they had promised), the Flaxen Defendants (Garces, Garces Cazadero, Mprezas,
`
`and OPMX), acting together with Defendant Hernandez (collectively, the “Desinflamax
`
`Defendants”) brazenly pivoted to selling their naproxen sodium products under a different
`
`infringing mark—DESINFLAMAX—through yet other closely held companies owned,
`
`controlled, or managed by Defendants’ relatives and associates.
`
`43.
`
`In February 2019—roughly six months after signing the prior settlement
`
`agreement—Alxigna assigned its entire interest in nearly twenty trademarks to yet another one of
`
`Defendants’ closely held companies: Defendant Mprezas. Following that assignment, the Flaxen
`
`Defendants largely abandoned Alxigna, which is now defunct and has been suspended by
`
`California authorities such that it can no longer legally do business and cannot bring an action or
`
`defend itself in court.
`
`12
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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 13 of 28 PageID# 13
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`44.
`
`Acting through Defendant Mprezas, Defendants Hernandez, Garces Cazadero, and
`
`OPMX participated in or were responsible for an intent-to-use application filed with the PTO
`
`seeking to register the DESINFLAMAX mark (Serial No. 90896029) for use in “anti-
`
`inflammatory ointments; cough syrups; pain relief medication; topical analgesic creams; sports
`
`cream for the relief of pain.”
`
`45.
`
`Defendant Garces—who was a party to the prior settlement agreement, is related to
`
`Defendant Garces Cazadero and had previously served as Mprezas’s (and Alxigna’s) CEO and
`
`CFO—also participated in or was responsible for the application to register the DESINFLAMAX
`
`mark. The DESINFLAMAX application was filed with the PTO on August 23, 2021.
`
`46.
`
`Like
`
`the FLAXEN mark before
`
`it,
`
`the Desinflamax Defendants’ new
`
`DESINFLAMAX mark is confusingly similar to Belmora’s FLANAX mark. Instead of reversing
`
`letters in FLANAX (like the Flaxen Defendants had done with FLAXEN), the DESINFLAMAX
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`mark replaces the “N” in FLANAX for an “M” to get FLAMAX and then adds “DESIN” at the
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`front. The resulting mark bears a close similarity to FLANAX and is likely to confuse consumers,
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`particularly when used to sell anti-inflammatory pain-relief medications (like naproxen sodium)
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`and other pharmaceutical products.
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`47.
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`By filing an intent-to-use application under Section 1(b) of the Trademark Act
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`(rather than a Section 1(a) use-in-commerce application), the Desinflamax Defendants gave the
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`false impression that they had not begun selling products under the DESINFLAMAX mark—only
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`that they intended to do so at some point in the indeterminate future.
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`48.
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`Belmora has no relationship with the Desinflamax Defendants and did not provide
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`consent for them to use a mark that was confusingly similar to its existing FLANAX mark.
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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 14 of 28 PageID# 14
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`49.
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`Belmora filed an action with the TTAB, opposing the Desinflamax Defendants’
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`application to register that mark on January 25, 2022. Belmora LLC v. Mprezas Inc., No.
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`91274140 (T.T.A.B. filed on Jan. 25, 2022) (the “Opposition”). Belmora argued that the PTO
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`should not register the DESINFLAMAX mark because it was confusingly similar and infringed
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`on Belmora’s previously registered and well-known FLANAX marks. The Opposition is pending
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`before the TTAB.
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`50.
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`In Belmora’s Opposition proceeding, the Desinflamax Defendants feigned
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`ignorance when asked about Belmora’s FLANAX mark. In sworn responses to Belmora’s
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`interrogatories, Defendants Mprezas and Hernandez falsely claimed that Mprezas only learned of
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`Belmora’s FLANAX marks on January 25, 2022—when Belmora filed its Opposition with the
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`TTAB. But those same interrogatory responses admit that Defendants OPMX and Garces
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`Cazadero—who were parties to the prior settlement agreement and therefore obviously knew about
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`Belmora’s FLANAX marks—were responsible for or participated in the application for the
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`DESINFLAMAX mark.
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`51.
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`In reality, that application simply reflects the Desinflamax Defendants’ latest
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`brazen effort to infringe Belmora’s protected intellectual property. Making that point
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`unmistakable, the Desinflamax Defendants put their “new” DESINFLAMAX mark in virtually the
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`exact same packaging that they had used for their infringing Flaxen product. As shown below,
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`the only material difference between the two is that the mark “DESINFLAMAX” has been
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`substituted for the mark “FLAXEN.”.
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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 15 of 28 PageID# 15
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`
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`52.
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`Both packages copy distinctive features of Belmora’s protected Flanax packaging,
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`including the use of a medical pictogram that shows the human body with a visible skeleton and
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`highlighting on areas of potential pain and bilingual information in English and Spanish. And it
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`prominently displays the DESINFLAMAX mark, which is confusingly similar to Belmora’s
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`FLANAX mark, especially when used to sell another naproxen sodium pain-relief medication.
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`Those distinctive features are likely to confuse a consumer into believing that the Desinflamax
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`Defendants’ naproxen sodium product is or has some relationship to Belmora’s Flanax product.
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`53.
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`The fact that the Desinflamax Defendants repurposed the old Flaxen packaging for
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`their “new” Desinflamax mark highlights that the DESINFLAMAX mark is nothing more than a
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`return to their past practice of violating Belmora’s intellectual-property rights. If the Desinflamax
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`Defendants knew about Flaxen—which Belmora had previously sued to enjoin for being
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`confusingly similar to its FLANAX mark and certain of those same Defendants had settled those
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`prior Belmora claims—then they obviously knew about Belmora’s FLANAX mark long before
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`they began selling naproxen sodium products under the DESINFLAMAX mark. The Desinflamax
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`Defendants’ decision to reuse that same Flaxen packaging—which various Defendants had agreed
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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 16 of 28 PageID# 16
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`never to use again because it was too confusingly similar to Belmora’s FLANAX mark—further
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`confirms that the Desinflamax Defendants intended their DESINFLAMAX mark and packaging
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`to be confusing to consumers and to infringe on Belmora’s well-established FLANAX marks.
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`54.
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`Despite the Desinflamax Defendants filing for an intent-to-use mark, Defendant
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`Hernandez’s sworn interrogatory responses also revealed that Defendants had already begun to
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`market and sell their naproxen sodium products under the DESINFLAMAX mark in several U.S.
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`states.
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`55.
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`Defendant
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`J&M Distributors operates an online “pharmacy” website
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`(farmaciamex.com) and knowingly aids the Desinflamax Defendants in selling their Desinflamax
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`naproxen sodium products to consumers in this District and elsewhere. Defendant J&M
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`Distributor’s farmaciamex website specifically targets the Spanish-speaking or Hispanic American
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`customers who are most likely to be familiar with Belmora’s Flanax brand.
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`56.
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`The Chief Executive Officer of J&M Distributors is related to Defendant Garces
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`and/or Garces Cazadero and is an active participant in their scheme to infringe on Belmora’s
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`FLANAX mark and copyrighted packaging, as well as unfairly competing with Belmora in
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`violation of federal and state law. It is a reasonable inference that the Desinflamax Defendants
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`chose to use a distributor controlled by a relative of those Defendants because J&M Distributors
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`knows that their sales are unlawful and nevertheless chose to make those sales. More information
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`about the knowledge of J&M Distributors is particularly in the possession of Defendants.
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`57.
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`The Desinflamax Defendants are also selling their naproxen sodium products under
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`the DESINFLAMAX mark to a distributor in Alexandria, Virginia. Indeed, OPMX’s own website
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`discloses that it sells and distributes its products in over 15 states and in over 12,000+ strategically
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`selected Hispanic retail stores, and specifically draws attention to sales in Alexandria, Virginia.
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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 17 of 28 PageID# 17
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`58.
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`Defendants’ actions have already begun to confuse consumers in the marketplace.
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`Belmora has already received inquiries from its wholesalers expressing confusion about whether
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`Desinflamax products are or have a relationship to Belmora’s Flanax products.
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`59.
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`That confusion is likely to only intensify as sales of Defendants’ infringing products
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`proliferate. That is particularly true because Defendants have sold or attempted to sell their
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`Desinflamax products to many of the same wholesalers and retailers that sell Belmora’s Flanax
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`products. Moreover, Defendants have sought to maximize that confusion by intentionally
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`targeting their infringing Desinflamax products to the Spanish-speaking and/or Hispanic-
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`American consumers who are most familiar with Belmora’s Flanax products.
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`COUNT I
`BREACH OF CONTRACT
`Against Defendants Mprezas, OPMX, Garces, and Garces Cazadero
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`60.
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`Belmora incorporates by reference into Count I all allegations contained in
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`paragraphs 1 through 59 of this Complaint as though set forth fully herein.
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`61.
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`Defendants OPMX, Garces, and Garces Cazadero are parties to a fully executed,
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`valid settlement agreement in the prior litigation concerning the FLAXEN mark.
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`62.
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`Section 10 of the settlement agreement provides that the agreement shall bind the
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`settling parties successors and assigns. Defendant Mprezas is a successor and assign to Alxigna,
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`which was a party to the settlement agreement. Mprezas is therefore bound by the prior settlement
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`agreement as if it had been a party and is liable for breaching that agreement.
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`63.
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`Section 2 of the prior settlement agreement provides that in exchange for Belmora’s
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`dismissal of the Flaxen action, the defendants “agree not to use of apply for in the United States
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`any trademark application containing the formative ‘F-L-A-X,’ ‘F-L-A-X-E-N’ or ‘F-L-A-N-A-
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`X’ or any other confusingly similar name, or trademark with the FLANAX Marks in connection
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`with any product within International Class 5, ‘Pharmaceuticals.’”
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`17
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`Case 1:22-cv-01100-CMH-IDD Document 1 Filed 09/27/22 Page 18 of 28 PageID# 18
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`64.
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`Defendants Mprezas, OPMX, Garc