Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 1 of 13
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`BREIT LAW, P.C.
`Michelle G. Breit – SBN 021439
`9375 E. Shea Blvd. Suite 100
`Scottsdale, Arizona 85260
`Telephone
`(480) 336-2800
`Facsimile
`(480) 336-2908
`mbreit@breitlawgroup.com
`Email
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`Attorneys for Plaintiffs REVIV IP, LLC
`and REVIV MANAGEMENT, LLC
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF ARIZONA
`REVIV IP, LLC, a Nevada limited
` Case No.
`liability company, and REVIV
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`MANAGEMENT, LLC, an Arizona
`COMPLAINT FOR TRADEMARK
`limited liability company
`INFRINGEMENT; UNFAIR
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`COMPETITION; AND BREACH OF
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`Plaintiffs,
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`CONTRACT
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`v.
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`Revive Health, Inc., an Arizona
`nonprofit corporation and Adam
`Blanchard, an individual
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`
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`Defendant.
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`Plaintiffs REVIV IP, LLC (“REVIV IP”) and REVIV MANAGEMENT, LLC
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`(REVIV MANAGEMENT) (jointly “REVIV” or “Plaintiffs”) for their Complaint against
`Defendants Revive Health, Inc. (“Revive Health”) and Adam Blanchard (“Blanchard”)
`(jointly “Defendants”), by and through undersigned counsel, allege as follows:
`THE PARTIES
`REVIV IP is a Nevada limited liability company with its principal place of
`1.
`business in Maricopa County, Arizona.
`REVIV MANAGEMENT is an Arizona limited liability company with its
`2.
`principal place of business in Maricopa County, Arizona.
`Upon information and belief, Defendant Revive Health is an Arizona
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`nonprofit corporation with its principal place of business at 1552 W. Beantree Lane,
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 2 of 13
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`Tucson, Pima County, Arizona.
`JURISDICTION AND VENUE
`This is an action for trademark infringement and unfair competition pursuant
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`to the Lanham Act, 15 U.S.C. § 1051 et seq., and for breach of contract under Arizona law.
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a) because trademark infringement is a federal question under the Lanham Act, 15
`U.S.C. § 1051 et seq.
`This Court has supplemental jurisdiction over the state law claim under 28
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`U.S.C. § 1367, as the facts underlying the state law claims are so related to the trademark
`claims that they form a part of the same case or controversy under Article III of the United
`States Constitution.
`This Court has personal jurisdiction over Defendant Revive Health because
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`it is an Arizona nonprofit corporation and it has its principal place of business in this
`District.
`This Court has personal jurisdiction over Defendant Blanchard because he is
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`an individual residing in Arizona.
`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) because
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`a substantial part of the events giving rise to the claims occurred and are occurring in this
`judicial district.
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`BACKGROUND
`10. REVIV IP is the owner by assignment of U.S. Trademark Registration No.
`4,434,924 (the “´924 Mark”) (Exhibit 1 hereto), filed on September 14, 2012 and
`registered on November 19, 2013, for the word mark “REVIV” (pronounced “revive”) in
`connection with “hydration clinic services, namely, intravenous hydration, intravenous
`electrolyte replacement therapy, intravenous vitamin infusion therapy, intravenous free
`radical reduction therapy, intravenous fluid cleansing therapy, intravenous hangover
`alleviation therapy, supplemental oxygen therapy, and massage therapy.”
`11. REVIV IP is the owner by assignment of U.S. Trademark Registration No.
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 3 of 13
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`4,247,345 (the “´345 Mark”) (Exhibit 2 hereto) filed on December 23, 2011 and registered
`on November 20, 2012, for the composite mark shown in Fig. 1 below, in connection with
`“hydration clinic services, namely, intravenous hydration, intravenous electrolyte
`replacement therapy, intravenous vitamin infusion therapy, intravenous free radical
`reduction therapy, intravenous fluid cleansing therapy, intravenous hangover alleviation
`therapy, supplemental oxygen therapy, and massage therapy.”
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`Fig. 1
`12. REVIV IP’s trademark registrations are collectively referred to as the
`“REVIV Marks.”
`Plaintiff REVIV MANAGEMENT is the exclusive licensee of the REVIV
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`Marks with rights to sublicense the trademark. Collectively, REVIV IP and REVIV
`MANAGEMENT are referred to herein as “REVIV.”
`The REVIV business began in 2011, when four emergency room physicians
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`with a combined forty (40) years of clinical experience came together with a common
`thought to promote health and wellness through education and bringing intravenous (IV)
`therapies to a private spa-like setting, making them easily accessible and affordable to the
`mass population. The founders of REVIV believed that many people with different
`wellness needs could benefit greatly from intravenous nutrient and hydration therapies and
`supplementation without having to go to the extreme of visiting a hospital or traditional
`clinical setting.
`15. With that pioneering concept in mind, the founders opened the first-in-the-
`world wellness center in Miami Beach, Florida offering nutrient and IV hydration therapy.
`Since then, the founders have opened numerous retail locations in the United States,
`including in New York, Las Vegas, and Miami, and East Hampton, and at times operated
`locations in Phoenix and Los Angeles. REVIV also offers “concierge services,” by
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 4 of 13
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`providing its goods and services to customers in the comfort of their own homes, hotels,
`offices, and even outdoors. The REVIV founders also have expanded the REVIV business
`to locations outside the United States, with self-owned and franchise locations in 45
`countries with over 100 retail outlets
`16. REVIV has served hundreds of thousands of customers worldwide since its
`inception, offering a higher level of care than they would receive from buying over the
`counter medication and supplements and without the need to visit a doctor’s office or
`hospital.
`17. REVIV invests heavily in research and development of its products and is
`continually improving its client amenities to ensure the REVIV experience is of the highest
`quality. REVIV also works closely with regulatory authorities to help define operating
`practices and guidelines and invests in training its certified medical staff on its product
`knowledge and delivery techniques, with an emphasis on client care.
`Since 2012, REVIV has continuously used the REVIV Marks in connection
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`with hydration clinic services, intravenous hydration, intravenous electrolyte replacement
`therapy, intravenous vitamin infusion therapy, intravenous hangover alleviation therapy,
`wellness counseling, internet-based wellness education, genetics testing and counseling,
`among other services (“REVIV’s Services”).
`19. REVIV has expended substantial time, effort, and money on advertising,
`promoting, and marketing the REVIV Marks in connection with REVIV’s Services in
`locations throughout the United States and abroad.
`The REVIV Marks are prominently displayed on the exterior and interior of
`20.
`REVIV’s retail locations, on REVIV’s website, at the domain http://www.REVIVME.com,
`as well as on Facebook at https://www.facebook.com/revivme/, Twitter as @revivme,
`Instagram as revivme, and on other promotional and advertisement materials. In addition,
`REVIV advertises through its many postings on YOUTUBE.
`21. Consumers have spent significant sums of money purchasing services under
`the REVIV Marks.
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 5 of 13
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`22. As a result of this wide-ranging use and promotion, REVIV has developed
`significant and extensive goodwill in the REVIV Marks in the United States and
`internationally.
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`INFRINGING ACTIVITY
`23. REVIV is informed and believes that no earlier than February 2018, but at
`least after the USPTO registered the REVIV Marks, Defendant Adam Blanchard founded
`Revive Health, Inc.
`24. Defendant Adam Blanchard is the President and CEO of Defendant Revive
`Health, as well as a Director of the nonprofit corporation.
` Blanchard adopted the tradename “Revive Tucson” and conducts business
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`on behalf of Revive Health, Inc. under the name “Revive Tucson.”
`26. Despite REVIV’s established rights in the REVIV Marks, Defendants have
`been using the mark “REVIVE TUCSON” to promote and sell intravenous hydration
`therapy and intravenous vitamin infusion therapy and other related services in Tucson,
`Arizona.
`27. Defendants maintain a website at URL http://www.irevivetucson.com (the
`“Revive Tucson Website”), in which they use the mark REVIVE TUCSON to sell
`intravenous hydration therapy services and other services that are the same or similar to
`and closely related to REVIV’s Services.
`28. An example of Defendants’ use of the trademark REVIVE TUCSON on the
`Revive Health Website is shown in Figures 2 below:
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`Fig. 2
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`29. Defendants’ use of the trademark REVIVE TUCSON on the Revive Health
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 6 of 13
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`website constitutes interstate commerce.
`30. Blanchard has actively and knowingly caused the conduct alleged herein,
`including being responsible for the use of confusingly similar trademarks on the Revive
`Health Website, as well as Revive Health’s other uses of REVIVE TUCSON in the
`promotion of intravenous hydration therapy services.
`31. Defendants’ use of the mark REVIVE TUCSON, both alone and with the
`helix design, is confusingly similar to Plaintiffs’ REVIV Marks and likely to mislead the
`public and confuse customers and potential customers as to the source, origin, sponsorship,
`or affiliation of Defendant Revive Health and its goods and services with regard to
`Plaintiffs’ REVIV Marks, and to harm Plaintiffs’ reputation and the goodwill of the REVIV
`Marks through inferred association of Defendant Revive Health with Plaintiffs and their
`REVIV hydration clinics and concierge services.
`In adopting the confusingly similar service marks in connection with the
`32.
`marketing and provision of substantially identical services as Plaintiffs’ services,
`Defendants intended to capitalize on the goodwill and reputation of Plaintiffs and/or trick
`members of the public that are looking to utilize Plaintiffs’ services or inquiring into
`Defendants’ services or otherwise believing that Defendants’ services are from, sponsored
`by, or approved by Plaintiffs. Through their use of the REVIVE TUCSON trademark in
`connection with and as a designation for intravenous hydration and related goods and
`services, Defendants are knowingly and willfully relying on Plaintiffs’ past advertising and
`fame, as well as the goodwill symbolized by the REVIV marks and the credibility
`appurtenant thereto due to Plaintiffs’ years of providing quality service and good value, in
`order to profit for themselves.
`33. Defendants’ use of the trademark REVIVE TUCSON is not authorized by
`Plaintiffs.
`34. Defendants’ use of the trademark REVIVE TUCSON is neither fair use nor
`in good faith.
`The above-described Defendants’ uses infringe the REVIV Marks.
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 7 of 13
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`In or about July 2020, Plaintiffs notified Defendants of their trademark
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`infringement and demanded Defendants cease and desist such action.
`In response, Revive Health entered into a Settlement Agreement with
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`Plaintiff REVIV IP, LLC, effective October 6, 2020. Attached hereto as Exhibit 3 is a true
`and correct copy of the Settlement Agreement.
`38. Under the Settlement Agreement, Revive Health agreed that no later than
`May 30, 2021, Revive Health and its officers and directors, among others, would cease all
`use of “any word, term, name, symbol, logo or device (or any combination thereof) that is
`identical or confusingly similar to, or a colorable imitation or dilutive of, the REVIV Marks
`(including but not limited to the word ‘REVIVE,’ ‘REVIVE HEALTH,’ and ‘REVIVE
`TUCSON’) in connection with any goods or services.”
`In addition, under the Settlement Agreement, Defendant Revive Health
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`agreed that no later than May 20, 2021, it would cease using the domain
`<irevivetucson.com> for any purpose. Further, Revive Health agreed that it would not
`transfer the domain to any person or entity who sells goods or services covered by
`trademark International Class 004.
`The Settlement Agreement further provides:
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`The Parties acknowledges that a material breach or threatened breach by a
`Party of any of its obligations under this Agreement would give rise to
`irreparable harm to the other Party for which monetary damages would not be
`an adequate remedy and hereby agree that in the event of a breach or a
`threatened breach by a Party of any such obligations, the other Party shall, in
`addition to any and all other rights and remedies that may be available to it in
`respect of such breach, be entitled to equitable relief, including a temporary
`restraining order, an injunction, specific performance, and any other relief that
`may be available from a court of competent jurisdiction (without any
`requirement to post bond).
`In addition, the Settlement Agreement provides:
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 8 of 13
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`In the event that any Party institutes any legal suit, action or proceeding against
`the other Party to enforce the covenants contained in this Agreement or obtain
`any other remedy in respect of any breach of this Agreement, the prevailing
`party in the suit, action or proceeding shall be entitled to receive in addition to
`all other damages to which it may be entitled, the costs incurred by the
`prevailing party in conducting the suit, action or proceeding, including
`reasonable attorneys’ fees and expenses and court costs.
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`42. Defendant Blanchard executed the Settlement Agreement on behalf of
`Defendant Revive Health.
`43. Notwithstanding the contractual obligation to cease use of the mark REVIVE
`TUCSON and to cease use of the domain <irevivetucson.com> by no later than May 30,
`2021, Defendant Revive Health and Defendant Blanchard continue to use the term
`REVIVE TUCSON and continue to use the domain <irevivetucson.com> in connection
`with the promotion and sale of intravenous hydration therapy services.
`44. Defendants have ignored renewed cease and desist demands and have
`continued to use the mark REVIVE TUCSON and the domain <irevivetucson.com> and
`continue to infringe the REVIV Marks.
`The goodwill REVIV has developed under the REVIV Marks is of
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`significant value, and harm to such goodwill is irreparable.
`46. REVIV has and will continue to sustain irreparable harm to its business,
`reputation and goodwill, as a direct and proximate result of Defendants’ actions.
`Plaintiffs have no adequate remedy at law for the acts of infringement and
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`other unlawful acts complained of herein and such acts have caused and will continue to
`cause injury to Plaintiffs if Defendants are not restrained by this Court from further
`violations of Plaintiffs’ rights.
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 9 of 13
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`FIRST CAUSE OF ACTION
`Trademark Infringement Under Federal Statute
`15 U.S.C. § 1114(1)
`(Against all Defendants)
` Plaintiffs reallege and incorporate by reference each of the numbered
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`paragraphs above as if fully set forth here.
`This is a claim for infringement of REVIV’s federal registered marks, as
`49.
`depicted in Exhibit 1.
`50. Defendants conduct is likely to cause confusion, mistake, or deception as to
`the source or origin of their intravenous hydration therapy services, or the affiliation,
`sponsorship, or of the relationship between the parties in violation of 15 U.S.C. § 1114(1).
`51. Defendants’ conduct also constitutes an attempt to trade on the goodwill that
`REVIV has developed in the REVIV Marks, all to the damage of REVIV.
`52. By their conduct, Defendants have cause REVIV irreparable harm, damage,
`and injury and will continue to do so unless restrained and enjoined by this Court from
`further infringing the REVIV Marks.
`53. REVIV has no adequate remedy at law.
`54. Defendants had actual knowledge of the REVIV Marks during the time they
`conducted their infringing activities. REVIV has repeatedly requested that Defendants
`cease and desist their infringing actions. REVIV has given Defendants actual notice that
`REVIV’s trademarks are registered and protected. Defendants’ nonetheless have refused
`to cease their infringing activities.
`55. Defendants willfully adopted and/or continue to use trademarks confusingly
`similar to the REVIV Marks and their continued use of such constitute knowing, deliberate,
`and willful infringement.
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`SECOND CAUSE OF ACTION
`Unfair Competition Under Federal Statute
`15 U.S.C. § 1125(a)
`(Against all Defendants)
`Plaintiffs reallege and incorporate each of the numbered above as if fully set
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 10 of 13
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`forth herein.
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`This is a claim for unfair competition, arising for Defendants’ unlawful acts,
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`including, without limitation, use of a false designation of origin which is likely to cause
`confusion, mistake, or deception as to origin, sponsorship, or approval in violation of
`Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`58. Defendants’ conduct constitutes an attempt to trade on the goodwill that
`REVIV has developed in the REVIV Marks, all to the damage of REVIV.
`59. By their conduct, Defendants have caused REVIV irreparable harm, damage,
`and injury and will continue to do so unless restrained and enjoined by this Court from
`further unfairly competing with REVIV by infringing the REVIV marks.
`60. REVIV has no adequate remedy at law.
`61. Defendants had actual knowledge of the REVIV Marks during the time they
`have unfairly competed with REVIV. REVIV has repeatedly requested that Defendants
`cease and desist their infringing actions. Defendants’ nonetheless have refused to cease
`their infringing activities.
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`THIRD CAUSE OF ACTION
`Breach of Contract
`Plaintiffs reallege and incorporate each of the numbered above as if fully set
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`forth herein.
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`63. Under the Settlement Agreement, Defendant Revive Health agreed, by no
`later than May 30, 2021, to cease use of the mark REVIVE TUCSON in connection with
`any goods and services and to cease the use of the domain <irevivetucson.com> for any
`purpose, among other terms and conditions.
`Plaintiff REVIVE IP has performed all material conditions, covenants, and
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`promises required to be performed on its part in accordance with the terms and conditions
`of the Settlement Agreement.
`65. Defendant Revive Health has failed to perform its obligations under the
`Settlement Agreement, including by continuing to use the mark REVIVE TUCSON to
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 11 of 13
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`promote, advertise, and sell intravenous hydration therapy services and by continuing to
`use the domain <irevivetucson.com>.
`66. Defendant’s conduct constitutes a material breach of the Settlement
`Agreement.
`67. As a direct and proximate result of Defendant’s breaches, REVIV IP has
`suffered damages in an amount to be determined at trial, along with costs of suit and
`attorney’s fees.
`68. REVIV IP, LLC is entitled to reasonable attorneys’ fees, including but not
`limited to as provided under A.R.S. § 12-341 and A.R.S. § 12-341.91(A) and under Section
`14 of the Settlement Agreement.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiffs respectfully pray that this Court grant the following
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`relief:
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`That the Court enter injunctive relief, ordering that Defendant Revive Health,
`A.
`as well as its franchisees, officers, agents, servants, employees, attorneys, subsidiaries, and
`all others in active concert or participation with them, are enjoined and restrained from:
`1. using, advertising, promoting, displaying, registering, apply for or
`maintaining registrations for, or exploiting in any way the mark or name
`REVIVE TUCSON, on any other trademarks, designations or tradename,
`domain name or identifying word or name that is confusingly similar to
`Plaintiffs’ REVIV Marks;
`2. using any false designation of origin or false description which can or is
`likely to lead the trade or pubic, or individual members thereof, to believe
`mistakenly that any service advertised, promoted, offered, or sold by
`Defendants is sponsored, endorsed, connected with, approved, or authorized
`by REVIV;
`3. committing any other acts calculated or likely to cause the public to believe
`that Defendants or their goods or services are in any way connected, affiliated
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 12 of 13
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`or associated with, or otherwise sponsored by, REVIV; and/or
`4. competing unfairly with Plaintiffs in any other way.
`Pursuant to 15 U.S.C. § 1116(a), that Defendants be directed to file with the
`B.
`Court and serve upon Plaintiffs within thirty (30) days after entry of final judgment, a report
`in writing and under oath setting forth in detail the manner and form by which they have
`complied with the provisions set forth in paragraphs 1 through 4 above;
`That the Court award damages to REVIV in a sum according to proof at trial;
`C.
`That the Court order an accounting and disgorgement of Defendants’ profits,
`D.
`and reasonable attorneys’ fees, costs, and exemplary damages in view of the intentional
`nature of the acts complained of in this Complaint and the exceptional nature of this case,
`pursuant to 15 U.S.C. § 1117(a)-(b), and under all applicable statutes and rules;
`That the Court award REVIV reasonable attorneys’ fees, costs and expenses
`E.
`as provided under A.R.S. § 12-341 and A.R.S. § 12-341.01(A), under the Settlement
`Agreement, and under any other applicable statute or rule;
`That the Court award REVIV pre-judgment and post-judgment interest at the
`F.
`maximum rate allowed by law;
`That the Court award REVIV such further relief as is merited under the law
`G.
`and equity.
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`DEMAND FOR JURY TRIAL
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a
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`trial by jury of this action.
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`DATED this 7th day of September, 2021.
`BREIT LAW, PC
`
`
`/s/ Michelle G. Breit
`Michelle G. Breit (SBN 021439)
`mbreit@breitlawgroup.com
`9375 E. Shea Blvd., Suite 100
`Scottsdale, Arizona 85260
`Telephone
`(480) 336-2800
`Facsimile
`(480) 336-2908
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`Case 4:21-cv-00355-LAB Document 1 Filed 09/07/21 Page 13 of 13
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`Attorneys for Plaintiffs REVIV IP, LLC and
`REVIV MANAGEMENT, LLC
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