Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 1 of 33 Page ID #:1
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`Deborah A. Gubernick (#242483)
`dgubernick@swlaw.com
`Christopher D. Bright (#206273)
`cbright@swlaw.com
`Michelle Emeterio (#340328)
`memeterio@swlaw.com
`SNELL & WILMER L.L.P.
`600 Anton Blvd., Suite 1400
`Costa Mesa, California 92626-7689
`Telephone: 714.427.7000
`Facsimile: 714.427.7799
`Attorneys for Plaintiff
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`
`
`
`PURE PROACTIVE HEALTH, INC.,
`a Delaware corporation,
`Plaintiff,
`
`vs.
`BETR REMEDIES, LLC, a Delaware
`limited liability company, COUNTRY
`MILE, LLC, a Delaware limited
`liability company, GREEN PARK
`BRANDS, LP, a Delaware limited
`partnership, GREEN PARK BRANDS
`GP, LLC, a Delaware limited liability
`company, GREEN PARK
`HOLDINGS, LLC, a Delaware limited
`liability company, LIVIO BISTERZO,
`JENNIFER SIMONE HOFFMAN,
`ELLEN POMPEO, and DOES 1-10
`Defendants.
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`4871-1059-3291
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`Case No. 2:22-cv-00651
`COMPLAINT
`1. FEDERAL REGISTERED
`TRADEMARK
`INFRINGEMENT (15 U.S.C. §
`1114)
`2. FEDERAL FALSE
`DESIGNATION OF ORIGIN (15
`U.S.C. § 1125(a))
`3. CALIFORNIA COMMON LAW
`TRADEMARK
`INFRINGEMENT (Cal. Bus. &
`Prof. Code § 14200 et seq.)
`4. UNFAIR COMPETITION AND
`UNFAIR BUSINESS
`PRACTICES (Cal. Bus. & Prof.
`Code § 17200 et seq.)
`5. CANCELATION OF
`REGISTERED TRADEMARKS
`(15 U.S.C. § 1064(1) and (3))
`6. CYBERSQUATTING UNDER
`15 U.S.C. § 1125(d)
`
`
`AND DEMAND FOR JURY TRIAL
`
`
`
`
`COMPLAINT, CASE NO. 2:22-CV-00651
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`SNELL & WILMER
`
`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
`
`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 2 of 33 Page ID #:2
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`Plaintiff Pure Proactive Health, Inc., by and through its attorneys, files this
`Complaint (“Complaint”) against Defendants Betr Remedies, LLC, Country Mile,
`LLC, Green Park Brands, LP, Green Park Brands GP, LLC, Green Park Holdings,
`LLC, Livio Bisterzo, Jennifer Simone Hoffman, Ellen Pompeo, and DOES 1-10,
`individually and collectively, alleging as follows:
`PARTIES
`Plaintiff Pure Proactive Health, Inc., a Delaware corporation, is
`1.
`engaged in the business of developing and selling various health and nutritional
`supplements and providing wholistic wellness and chronic disease management
`programs, doing business as “Betr Health” also known as “Betr” (hereinafter
`“Plaintiff” or “Betr Health”), having its principal place of business at 1 Glenwood
`Avenue #5, Raleigh, NC 27603.
`Defendant Betr Remedies, LLC (“BR”), a Delaware limited liability
`2.
`company, having a principal place of business at 1601 Colorado Avenue, Santa
`Monica, CA 90404, is also engaged in the manufacture, distribution and sale of
`various health and nutritional supplements and medications. BR is formerly known
`as Live Betr, LLC.
`Defendant Country Mile, LLC (“Country Mile”) is a Delaware limited
`3.
`liability company having a principal place of business at 348 Sterling Road,
`Kenilworth, IL 60043. Country Mile is a member of Defendant BR.
`Defendant Green Park Brands, LP (“Green Park Brands”) is a Delaware
`4.
`limited partnership, having a principal place of business at 1601 Colorado Avenue,
`Santa Monica, CA 90404, and is the holding company for BR.
`Defendant Green Park Brands GP, LLC (“GPB”) is a Delaware limited
`5.
`liability company, having a principal place of business at 1601 Colorado Avenue,
`Santa Monica, CA 90404.
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`4871-1059-3291
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`- 2 -
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`COMPLAINT, CASE NO. 2:22-CV-00651
`
`
`SNELL & WILMER
`
`L.L.P.
`
`COSTA MESA, CALIFORNIA 92626-7689
`
`600 ANTON BLVD, SUITE 1400
`
`LAW OFFICES
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`

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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 3 of 33 Page ID #:3
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`Defendant Green Park Holdings, LLC (“GPH”) is a Delaware limited
`6.
`liability company, having a principal place of business at 2804 Gateway Oaks Drive,
`Suite 100, Sacramento CA 95833.
`On information and belief, Defendant Livio Bisterzo (“Mr. Bisterzo”)
`7.
`is an individual domiciled in Santa Monica, California, and is the COO and Co-
`Founder of BR. On information and belief, Mr. Bisterzo was formerly also the CEO
`of BR, has been one of the primary active participants in the allegations herein and
`is a guiding spirit of, central figure in, and moving, conscious force of the Defendant
`BR (hereinafter, for efficiency, “moving, conscious force”).
`On information and belief, Defendant Jennifer Simone Hoffman (“Ms.
`8.
`Hoffman”) is an individual domiciled in New York, and is the President and Co-
`Founder of BR. On information and belief, Ms. Hoffman has been one of the primary
`active participants in the allegations herein and is a moving, conscious force of the
`Defendant BR as further described herein.
`On information and belief, Defendant Ellen Pompeo (“Ms. Pompeo”)
`9.
`is an individual domiciled in Los Angeles, California, is a Co-Founder of BR, and
`is the Chief Impact Officer of BR. Ms. Pompeo is well known for her role as a doctor
`in the hit television series, Grey’s Anatomy. On information and belief, Ms. Pompeo
`has been one of the primary active participants in the allegations herein and is a
`moving, conscious force of the Defendant BR as further described herein.
`10. Does 1-10 are persons or entities responsible, in whole or in part, for
`the wrongdoing alleged herein (“Doe Defendants”). Plaintiff is informed and
`believes, and based thereon, alleges that each of the Doe Defendants participated in,
`assisted, endorsed, or was otherwise involved in the acts complained hereof, and that
`they have liability for such acts. Plaintiff will amend this Complaint if and when
`the identities of such persons or entities, and the details of their involvement
`becomes known.
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`4871-1059-3291
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`- 3 -
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`COMPLAINT, CASE NO. 2:22-CV-00651
`
`
`SNELL & WILMER
`
`L.L.P.
`
`COSTA MESA, CALIFORNIA 92626-7689
`
`600 ANTON BLVD, SUITE 1400
`
`LAW OFFICES
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`

`

`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 4 of 33 Page ID #:4
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`11. Defendants BR, Country Mile, Green Park Brands, GPB, GPH, Mr.
`Bisterzo, Ms. Hoffman, and Ms. Pompeo are collectively referred to as the
`“Defendants.” Individual defendants may be referred to herein as “Defendant.”
`JURISDICTION AND VENUE
`12. This court has subject matter jurisdiction under 15 U.S.C. § 1121(a),
`15 U.S.C. § 1125(d), 28 U.S.C. §§ 1331, 1338(a), 1338(b), and 1367(a), in that this
`action arises under Acts of Congress relating to federal trademarks and federal
`false designation of origin, cybersquatting under the federal trademark and anti-
`cybersquatting laws, and the claims for California common law trademark
`infringement, unfair competition under California state law are joined with
`substantial and related claims brought under the federal trademark laws, and the
`federal and state law claims arise from a common nucleus of operative facts. This
`Court has supplemental jurisdiction over related state law claims pursuant to 28
`U.S.C. § 1367(a) because these claims form part of the same case or controversy.
`Subject matter jurisdiction is also proper as to Country Mile, Green Park Brands,
`GPB, GPH, Mr. Bisterzo, Ms. Hoffman and Ms. Pompeo in that the court would
`have supplemental jurisdiction as they are necessary parties to the action and the
`claims are so related to the claims in the action with such original jurisdiction that
`they form part of the same case or controversy under Article III of the United
`States Constitution pursuant to 28 U.S.C. § 1367.
`13. This Court has personal jurisdiction over Defendant BR, Defendant
`Green Park Brands, and Defendant GPB because each of them has a principal
`place of business in this District. This Court also has personal jurisdiction over Mr.
`Bisterzo and Ms. Pompeo because they are domiciled in this District.
`14. This Court also has personal jurisdiction over all Defendants because
`Defendants have conducted systematic and continuous business within California,
`including this District, and because they have directed their unlawful business
`activities towards California, including this District, and have caused injury to the
`COMPLAINT, CASE NO. 2:22-CV-00651
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`4871-1059-3291
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 5 of 33 Page ID #:5
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`Plaintiff within California, including this District. Defendants are also subject to
`personal jurisdiction in this Court because, inter alia, and upon information and
`belief, Defendants directly and through agents regularly solicit and transact
`business in this District and elsewhere in the state of California. In particular,
`Defendants have committed and continue to commit the unlawful acts set forth in
`this Complaint in the State of California, including in this District. Defendants’
`acts have caused injury to Plaintiff in the State of California, including in this
`District.
`15. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and (c) in
`that a substantial part of the events giving rise to the claim occurred in this district
`and that Defendants are subject to the court’s subject matter and/or personal
`jurisdiction with respect to this action as indicated in the preceding paragraphs.
`FACTUAL BACKGROUND REGARDING PLAINTIFF
`16. Betr Health was founded by Dr. William Ferro, a doctor of
`chiropractic who, in addition to his chiropractic work, specializes in the business
`of nutrition, holistic remedies, personal coaching and stress management solutions.
`17. Betr Health was originally launched as Pure Proactive Health in 2011,
`and rebranded to Betr Health in 2015. Betr Health began applying for federal
`trademark protection for the mark BETR and variations thereof shortly thereafter.
`18. Since at least as early as February 5, 2016, Plaintiff has used the
`trademark BETR in U.S. commerce in connection with its proprietary daily health
`and wellness supplements, some of which are medical grade health supplements,
`and these products have been marketed continuously in commerce throughout the
`United States.
`19. Plaintiff has also offered chronic disease management and wellness
`coaching software and programs concurrently with its health supplements since at
`least 2016.
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`4871-1059-3291
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`COMPLAINT, CASE NO. 2:22-CV-00651
`
`
`SNELL & WILMER
`
`L.L.P.
`
`COSTA MESA, CALIFORNIA 92626-7689
`
`600 ANTON BLVD, SUITE 1400
`
`LAW OFFICES
`
`

`

`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 6 of 33 Page ID #:6
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`20. Betr Health has become a leading provider of wellness goods and
`services including its health supplements such as probiotics, electrolytes, immune
`support, adrenal support, and digestive support, as well as personalized treatment
`programs including digital coaching, nutrition and meal planning, meal-delivery
`services, and lifestyle modification programs.
`21. Betr Health promotes a cultural change using cutting edge science to
`overcome ailments of our day, including pain, anxiety, stress, digestive health,
`obesity, hydration issues, sleep problems and more.
`22. Betr Health is headquartered in Raleigh, North Carolina, has a robust
`online presence via the world wide web, sells products nationwide, and utilizes
`coaching staff located throughout the United States.
`23. Betr Health also partners with insurance plans, global health plans,
`employers, gyms and individual users to provide its products and offer
`corresponding services to promote health solutions that, among other benefits, are
`designed to reduce the costs of medical care.
`24. Thousands of customers from across the United States have
`successfully utilized Betr Health supplements and participated in Betr Health’s
`programs.
`25. Betr Health’s diabetes prevention and lifestyle change program is
`approved by the Centers for Disease Control (CDC) and has been since 2017.
`26. Thousands of active members have joined Betr Health’s Community
`Facebook group devoted to sharing wellness journeys, recipes, tips, and
`motivation.
`27. Betr Health has invested significant time, effort, and expense in
`developing, advertising, marketing, and promoting its BETR trademark and the
`goods and services thereunder.
`28. Betr Health owns the www.betrhealth.com website, featuring its
`products and services as exemplified in Exhibit A.
`COMPLAINT, CASE NO. 2:22-CV-00651
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 7 of 33 Page ID #:7
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`Indeed, Betr Health’s supplements are offered through its online store
`29.
`at (https://store.betrhealth.com/collections/internal-health) as shown in Exhibit B.
`30. Plaintiff, through its affiliated holding company, Proactive Fitness
`Solutions, also owns the domain name www.weighbetr.com, created January 28,
`2016 as shown in Exhibit C. This domain redirect to www.betrhealth.com. Plaintiff
`and or its affiliated holding company also owns approximately sixty (60) other
`domain names that include the erm “BETR” as shown in Exhibit D.
`31. Among its product offerings are Plaintiff’s Daily Essentials Pack
`(Microbiome and Immune Health), Adrenal, Lyte-Up, Probiotic, Enzymes and
`Immune products, as seen in Exhibit E.
`32. Betr Health’s products are sold under the BETR trademark and Betr
`Health has been featured in multiple nationwide publications and press such as:
`Blue Shield of California’s News Center; Virgin Pulse’s Welltok; Authority
`Magazine; FoodShuttle.org; Healthcare Finance; SHEFinds; Eat This Not That;
`Thrive Global; and Forbes.
`33. Attached as Exhibits F through N are true and correct copies of the
`publications and press referred to in the previous paragraph.
`34. Betr Health has also participated in community events and fundraisers
`to promote goodwill associated with its brand, including but not limited to the Inter
`Faith Food Shuttle and others.
`35. As a proprietor of daily health and wellness supplements, some of
`which are medical grade health supplements and other wellness products, Betr
`Health committed years of effort and expense to develop the reputation for quality
`and goodwill associated with its business.
`36. Betr Health’s continuous and exclusive use of BETR and the
`intellectual property associated therewith resulted in generating goodwill and
`consumer recognition in connection with BETR throughout the United States such
`that the BETR trademark is distinctive in the minds of the relevant purchasing
`COMPLAINT, CASE NO. 2:22-CV-00651
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`4871-1059-3291
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 8 of 33 Page ID #:8
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`public.
`37. Plaintiff has also negotiated with retailers concerning launch of
`product.
`Indeed, since 2016, Plaintiff has expanded its services and product
`38.
`offerings under the BETR trademark with no sign of slowing.
`PLAINTIFF’S TRADEMARKS
`39. Betr Health is the owner of a federal trademark registration for BETR
`under United States Trademark, Registration No. 5,108,062 covering “Medical and
`wellness services, namely, providing weight loss program services,” in Class 44,
`registered on December 27, 2016 (the “062 Registration”).
`40. A true and correct copy of the Certificate of Registration for the ‘062
`Registration is attached as Exhibit O.
`41. Betr Health’s ‘062 Registration is “prima facie evidence of the
`validity of the registered mark and of the registration of the mark, of [Betr
`Health’s] ownership of the mark, and of the [Betr Health’s] exclusive right to use
`the registered mark in commerce on or in connection with the goods or services
`specified in the certificate . . .” pursuant to 15 U.S.C. § 1057.
`42. Betr Health’s ‘062 Registration was filed before and registered before
`any use of BETR by Defendants.
`43. Betr Health is the owner of a federal trademark registration for BETR
`under United States Trademark Registration No. 5,233,391 covering “Computer
`software for providing health and wellness coaching,” in Class 9, registered on
`June 27, 2017 (the “391 Registration”).
`44. A true and correct copy of the Certificate of Registration for the ‘391
`Registration is attached as Exhibit P.
`45. Betr Health’s ‘391 Registration is “prima facie evidence of the
`validity of the registered mark and of the registration of the mark, of [Betr
`Health’s] ownership of the mark, and of the [Betr Health’s] exclusive right to use
`COMPLAINT, CASE NO. 2:22-CV-00651
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`4871-1059-3291
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 9 of 33 Page ID #:9
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`the registered mark in commerce on or in connection with the goods or services
`specified in the certificate . . .” pursuant to 15 U.S.C. § 1057.
`46. The ‘391 Registration was filed before and registered before any use
`of BETR by Defendants.
`47. Betr Health is the owner of a federal trademark registration for BETR
`THERAPEUTICS under United States Trademark Registration No. 5,971,673
`covering “Downloadable computer software for providing health and wellness
`coaching,” in Class 9, registered on January 28, 2020 (the “673 Registration”).
`48. A true and copy of the Certificate of Registration for the ‘673
`Registration attached as Exhibit Q.
`49. Betr Health’s ‘673 Registration is “prima facie evidence of the
`validity of the registered mark and of the registration of the mark, of [Betr
`Health’s] ownership of the mark, and of the [Betr Health’s] exclusive right to use
`the registered mark in commerce on or in connection with the goods or services
`specified in the certificate . . .” pursuant to 15 U.S.C. § 1057.
`50. Betr Health’s ‘673 Registration was filed before and registered before
`any use of BETR by Defendants.
`51. Betr Health also owns pending trademark applications. A complete
`list of Betr Health’s registered and pending trademarks is below.
`
`Mark
`
`Filing Date /
`Registration Date
`
`Status
`Application No. /
`Registration Number
`BETR THERAPEUTICS Registered
`88483952 /
`5971673
`Registered
`86899352 /
`5108062
`Registered
`86861740 /
`
`BETR
`
`BETR
`
`06/21/2019 /
`01/28/2020
`
`02/05/2016 /
`12/27/2016
`
`12/30/2015 /
`06/27/2017
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`4871-1059-3291
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`COMPLAINT, CASE NO. 2:22-CV-00651
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 10 of 33 Page ID #:10
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`Mark
`
`BETR
`
`BETR
`
`BETR
`
`BETR
`
`
`
`Status
`Application No. /
`Registration Number
`5233391
`Pending
`97089442
`Pending
`97089448
`Pending
`97087805
`Pending
`97087793
`
`Filing Date /
`Registration Date
`
`10/23/2021 /
`--
`10/23/2021 /
`--
`10/22/2021 /
`--
`10/22/2021 /
`--
`
` Betr Health also owns longstanding common law rights in and to
`52.
`BETR by virtue of continuous use of the mark in commerce for nutritional and
`dietary supplements and wellness programs since at least as early as 2016.
`53. Betr Health also owns common law rights to its stylized version of
`BETR by virtue of continuous use of the stylized marks with nutritional and
`dietary supplements, meal preparation and delivery, fitness and yoga training,
`personal weighing scales, and personal devices for tracking daily wellness
`activities as well as related health and wellness programs. Stylized versions of the
`BETR mark and BETR HEALTH marks are shown below with BETR being the
`dominant portion of Plaintiff’s marks:
`
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`4871-1059-3291
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`COMPLAINT, CASE NO. 2:22-CV-00651
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`
`SNELL & WILMER
`
`L.L.P.
`
`COSTA MESA, CALIFORNIA 92626-7689
`
`600 ANTON BLVD, SUITE 1400
`
`LAW OFFICES
`
`

`

`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 11 of 33 Page ID #:11
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`54. Betr Health’s pending, registered and common law trademarks are
`collectively referred to herein as the “BETR Marks.”
`55. As a result of Betr Health’s extensive use of its BETR Marks, the
`BETR Marks have become uniquely associated with Plaintiff.
`56. The BETR Marks are inherently distinctive, and Plaintiff’s use of its
`BETR Marks pre-dates Defendants’ confusingly similar use of BETR or BETR
`REMEDIES on or in connection with Defendants’ nutritional and dietary
`supplements, over-the-counter medications, and related health and wellness
`programs.
`DEFENDANTS ADOPT BETR AND INFRINGE PLAINTIFF’S RIGHTS
`57. Despite Plaintiff’s widespread use of its marks, and despite
`Defendants’ actual or at least constructive notice of Plaintiff’s registered and
`common law rights, Defendants adopted and began using the identical trademark
`BETR and nearly identical trademark and branding BETR REMEDIES.
`In fact, Defendant BR was originally formed as Live Betr, LLC in
`58.
`2019 well after Betr Health’s first use and despite that Betr Health’s affiliated
`entities already owned a livebetr.com domain name.
`59. On or about February 4, 2021, approximately five years after
`Plaintiff’s first use, Defendant BR changed its entity name from Live Betr, LLC to
`Betr Remedies, LLC.
`60. Defendants began offering identical and nearly identical goods to
`those offered by Plaintiff in March of 2021—years after Plaintiff had established
`rights and goodwill in and to the BETR Marks.
`61. Defendants advertise their products through www.betrremedies.com
`as shown in Exhibit R attached. This website domain was created January 1,
`2021—years after Plaintiff launched its BETR Mark. Defendants’ website and
`website domain utilizes and incorporates Plaintiff’s BETR Marks in that the word
`BETR is within the domain name itself, and appears within the website on product.
`COMPLAINT, CASE NO. 2:22-CV-00651
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 12 of 33 Page ID #:12
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`62. Defendants products are designed to relieve pain, allergies, cold and
`flu symptoms, sleep issues, dehydration, and digestive disfunction—the identical
`or highly similar relief as Plaintiff’s products.
`63. Defendants target the same type of consumers to which Plaintiff
`offers and markets its nutritional and dietary supplements under Plaintiff’s BETR
`Marks: those seeking means to alleviate pain and chronic illness, and to improve
`gut health, sleep, and stress.
`DEFENDANTS INFRINGEMENT ESCALATES AS DEFENDANTS ADOPT
`PLAINTIFF’S COLOR SCHEME
`64. Defendants’ earlier version of its infringing mark included the identical
`term BETR, a nearly identical mark, BETR REMEDIES, and a highly similar yet
`stylized mark in bright red with black as shown below:
`Plaintiff’s Trademark Use
`Defendants’ Original Trademark Use
`BETR
`BETR
`BETR HEALTH
`BETR REMEDIES
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`65. Defendants inch closer and closer to Plaintiff, even adopting mint
`green/light green color schemes, with the BETR as the primary focus and dominant
`portion of the mark – just like Plaintiff, as shown below:
`Plaintiff’s Trademark
`Defendants’ More Recent Trademark
`BETR
`BETR
`BETR HEALTH
`BETR REMEDIES
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`COMPLAINT, CASE NO. 2:22-CV-00651
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 13 of 33 Page ID #:13
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`66. The adoption of identical colors with an identical mark on identical
`nutritional and dietary supplements and related over the counter medications is
`likely cause consumer confusion.
`67. Defendants’ use of marks identical to and nearly identical to Plaintiff’s
`BETR Marks, with mint green/green pastel color as shown in Exhibit S
`(https://betrremedies.com/collections/allergy) is highly similar to Plaintiff’s color
`scheme used not only for its house mark shown in the charts above, but also for its
`Plaintiff’s Daily Essentials Pack (Microbiome and Immune Health), Adrenal, Lyte-
`Up, Probiotic, Enzymes and Immune products, as seen
`in Exhibit T
`(https://store.betrhealth.com/collections/internal-health).
`DEFENDANTS INFRINGEMENT ESCALATES AS THEY USE THE
`SAME MARK ON THE SAME PRODUCT OFFERINGS
`68. Defendants’ proximity to Plaintiff’s goods and services has no sign of
`decreasing, and if not stopped, will completely eclipse the entire product line
`Plaintiff has worked years to develop.
` For example, Plaintiff has offered “immune support” products since
`69.
`its inception in 2016. Defendants now offer “immunity support” also sold under
`the BETR mark as shown in the chart below:
`///
`///
`///
`///
`///
`///
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`COMPLAINT, CASE NO. 2:22-CV-00651
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 14 of 33 Page ID #:14
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`70. Defendants recently began offering hydration products – identical in
`nature to those offered by Plaintiff, branded in nearly identical color scheme as
`shown in the attached Exhibit U.
`71. On March 11, 2021, years after Plaintiff’s first use of BETR,
`Defendants began using BETR for various wellness products.
`PLAINTIFF SENDS CEASE AND DESIST LETTER AND DEFENDANTS
`ESCALATE INSTEAD OF STOP THE INFRINGMENT
`72. On April 12, 2021, shortly after learning of Defendants’ unauthorized
`use of BETR for pain relief, allergy, and sleeping pills under Plaintiff’s BETR
`Marks, Plaintiff sent a cease and desist letter to Defendants. Attached as Exhibit V
`is a true and correct copy of the cease and desist letter.
`73. To date, Defendants have not ceased infringing use of the BETR
`Marks and have instead expanded their product offerings to include identical
`products that are offered by Plaintiff.
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 15 of 33 Page ID #:15
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`In fact, after Plaintiff Betr Health sent its cease and desist letter,
`74.
`Defendants willfully expanded Defendants’ line of products to include digestive
`health aids, cold and flu medications, electrolyte powder, and immune support
`supplements, with further expansion planned in the probiotics, smoking cessation,
`telemedicine, mental health, and other spaces, all of which directly overlap with
`Plaintiff’s products and registered rights.
`75. On August 18, 2021, months after the cease and desist letter from
`Plaintiff, in an unsuccessful effort to pre-date Plaintiff’s rights, Defendant BR
`acquired the mark BETR, U.S. Trademark Application Numbers 87/983,921 and
`87/916,265 from Defendant Country Mile (the “Country Mile Original
`Applications”)—both of which post-date Plaintiff’s earliest trademark use date of
`2016.
`76. Attached as Exhibit W is a true and correct copy of the trademark
`assignment agreement between Defendant BR and Defendant Country Mile
`(USPTO Assignment Reel and Frame Number 7419/0059).
`77. Notwithstanding this assignment, Plaintiff has superior and earlier
`trademark rights to BETR.
`PLAINTIFF PETITIONS TO CANCEL DEFENDANTS’ REGISTRATION
`78. After acquiring the Country Mile Original Applications1, one of these
`applications became registered under United States Registration No. 6,456,090
`(the “BR’s Registration”).
`79. On August 19, 2021, Plaintiff initiated a Petition to Cancel Defendant
`BR’s Registration before Trademark Trial and Appeal Board (“TTAB”) of the
`United States Patent and Trademark (“USPTO”) Office under Proceeding Number
`92077880 (the “Cancellation Action”) on the basis of priority and likelihood of
`confusion under Trademark Act Sections 14(1) and 2(d).
`
`1 Country Mile’s U.S. Application No. 87916,265, was later divided—creating a new Application No. 87/983,921
`(the ‘921 Application). The ‘921 Application is that which matured to registration.
`
`COMPLAINT, CASE NO. 2:22-CV-00651
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`4871-1059-3291
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 16 of 33 Page ID #:16
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`80. Plaintiff is moving to suspend the TTAB Cancellation Action as the
`cancellation action is now encompassed within this suit for the purposes of judicial
`economy and efficiency and consistent with 15 U.S.C. § 1119.
`81. Furthermore, Plaintiff has discovered additional grounds for
`cancellation of the BR Registration, particularly that the registration was procured
`through fraudulent statements made during the prosecution history leading to the
`BR Registration.
`In fact, prior to transferring BR’s Registration to BR, Defendant
`82.
`Country Mile submitted a Statement of Use to the USPTO claiming use since
`March 11, 2021.
`83. On information and belief, Defendant Country Mile had not yet used
`the mark BETR in connection with any goods or services, rendering the assignment
`to Defendant BR invalid.
`84. On information and belief, Defendant Country Mile’s Statement of
`Use relied exclusively on use of the mark by BR pursuant to a license agreement
`dated March 15, 2019, when in fact use had not yet commenced either by Country
`Mile or BR.
`85. And, despite submitting the Statement of Use, neither Country Mile
`nor BR had made bona fide use of the mark despite declaring the mark was in fact
`in use as of March 11, 2021.
`86. The statements made in the Statement of Use and related Declaration
`were false.
`87. The United States Patent and Trademark Office (“USPTO”) relied on
`the false statements to its detriment, and to the benefit of Defendants, allowing the
`application to mature into BR’s Registration.
`88. But for the fraudulent statement and misrepresentation, the USPTO
`would not have granted BR’s Registration.
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`4871-1059-3291
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`COMPLAINT, CASE NO. 2:22-CV-00651
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`SNELL & WILMER
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`L.L.P.
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`COSTA MESA, CALIFORNIA 92626-7689
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`600 ANTON BLVD, SUITE 1400
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`LAW OFFICES
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`

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`Case 2:22-cv-00651 Document 1 Filed 01/28/22 Page 17 of 33 Page ID #:17
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`In its applications for the BR Marks, Defendants represented to the
`90.
`USPTO that no other entity or individual had rights to such mark when in fact BR
`had knowledge of Plaintiff’s rights.
`91. The USPTO has relied on Defendants misrepresentations to approve
`the BR Marks and bu