Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 1 of 8 PageID #: 1
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`ENERGETIX CORPORATION,
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`ENERGETIX HEALTH INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No.
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`JURY TRIAL DEMANDED
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`COMPLAINT
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`Plaintiff Energetix Corporation (“Plaintiff”), by and through its undersigned counsel,
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`allege as follows for this Complaint against Defendant Energetix Health Inc. (“Defendant”):
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`THE PARTIES
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`1.
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`Plaintiff is a corporation organized and existing under the laws of the State of
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`Georgia, having its principal place of business at 209 West Deerfield Lane, Dahlonega, Georgia
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`30533.
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`2.
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`Upon information and belief, Defendant is a corporation organized and existing
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`under the laws of the State of Delaware, having its principal place of business in Colorado.
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`NATURE OF THE ACTION
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`3.
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`This is an action for: (I) federal trademark infringement under 15 U.S.C. §§ 1501,
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`et seq. (hereinafter the “Lanham Act”); and (II) federal unfair competition under the Lanham Act.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction over Plaintiff’s claims (Counts I and II)
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`pursuant to 15 U.S.C. § 1121 (actions arising out of the Lanham Act); 28 U.S.C. §1331 (federal
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`jurisdiction); and 28 U.S.C. § 1338 (general jurisdiction for trademark actions).
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`{01812389;v1 }
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`ENERGETIX CORPORATION,
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`ENERGETIX HEALTH INC.,
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`
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`Plaintiff,
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`
`
`v.
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`
`
`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`
`
`
`C.A. No.
`
`JURY TRIAL DEMANDED
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`COMPLAINT
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`Plaintiff Energetix Corporation (“Plaintiff”), by and through its undersigned counsel,
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`allege as follows for this Complaint against Defendant Energetix Health Inc. (“Defendant”):
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`THE PARTIES
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`1.
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`Plaintiff is a corporation organized and existing under the laws of the State of
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`Georgia, having its principal place of business at 209 West Deerfield Lane, Dahlonega, Georgia
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`30533.
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`2.
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`Upon information and belief, Defendant is a corporation organized and existing
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`under the laws of the State of Delaware, having its principal place of business in Colorado.
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`NATURE OF THE ACTION
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`3.
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`This is an action for: (I) federal trademark infringement under 15 U.S.C. §§ 1501,
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`et seq. (hereinafter the “Lanham Act”); and (II) federal unfair competition under the Lanham Act.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction over Plaintiff’s claims (Counts I and II)
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`pursuant to 15 U.S.C. § 1121 (actions arising out of the Lanham Act); 28 U.S.C. §1331 (federal
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`jurisdiction); and 28 U.S.C. § 1338 (general jurisdiction for trademark actions).
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`{01812389;v1 }
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 2 of 8 PageID #: 2
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`5.
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`This Court has personal jurisdiction over Defendant because Defendant is
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`domiciled in Delaware, and otherwise has jurisdiction because Defendant has transacted business
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`in the State of Delaware; committed tortious acts or omissions causing an injury in the State of
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`Delaware; and caused tortious injury in the State of Delaware by an act or omission outside the
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`State of Delaware in connection with its regular business activities in the State of Delaware.
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`6.
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`Venue is proper in the District of Delaware pursuant to 28 U.S.C. § 1391(b)(1),
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`(b)(2) & (c)(2) because the claims alleged in the Complaint arose in this District, this Court has
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`personal jurisdiction over Defendant in this District, and because Defendant may be found and/or
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`resides in this District.
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`GENERAL ALLEGATIONS
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`Plaintiff’s Marks and Goods
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`7.
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`Plaintiff is the owner of the following federally registered trademarks:
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`ENERGETIX (U.S. Registration No. 2,755,137) and ENERGETIX & Design (U.S. Registration
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`No. 2,783,650) (hereinafter collectively “Plaintiff’s Marks”).
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`8.
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`Plaintiff has used both of Plaintiff’s Marks since at least as early as April 2001 in
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`connection with products and services offered in a niche industry, specifically the selling of
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`homeopathic and botanical products, and nutritional and dietary supplements used for the purpose
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`of promoting general health and wellness (hereinafter “Plaintiff’s Goods”).
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`9.
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`On September 5, 2001, Plaintiff filed federal trademark applications for both of
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`Plaintiff’s Marks and was issued U.S. Registration No. 2,755,137 for ENERGETIX (the ‘137
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`Registration) on August 26, 2003 and U.S. Registration No. 2,783,650 for ENERGETIX & Design
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`(the ‘650 Registration) on November 18, 2003. The registrations are collectively attached as
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`Exhibit A.
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 3 of 8 PageID #: 3
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`10.
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`Both of Plaintiff’s Marks are now incontestable pursuant to 15 U.S.C. § 1065,
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`providing conclusive evidence of Plaintiff’s ownership of the marks and of its exclusive right to
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`use the registered marks in commerce.
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`11.
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`Both of Plaintiff’s Marks have been used continuously in interstate commerce since
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`the inception of their use by Plaintiff, and are still in use as of the date of this filing. Plaintiff
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`advertises and sells Plaintiff’s Goods under Plaintiff’s Marks throughout the United States
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`including, but not limited to, Delaware and Colorado.
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`12.
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`On account of its long and continuous use of Plaintiff’s Marks and substantial
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`advertising and sales of its goods and services under these marks, Plaintiff has established
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`trademark rights in Plaintiff’s Marks.
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`13.
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`Through its promotional efforts, business conduct, and continuous use of Plaintiff’s
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`Marks, Plaintiff has developed and maintained customers throughout the United States, including
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`Delaware and Colorado. Plaintiff’s Marks have become, through widespread and favorable public
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`acceptance and recognition, an asset of substantial value as a symbol of Plaintiff and its high
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`quality goods, services and goodwill.
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`Defendant’s Activities
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`14.
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`Upon information and belief, Defendant uses “Energetix” as a trademark or service
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`mark, a trade name and as a website domain name (energetix.health) in association with providing
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`goods and services in the health and wellness sector related to Plaintiff’s Goods.
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`15.
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`Although Plaintiff actively polices Plaintiff’s Marks, Plaintiff only recently became
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`aware of Defendant in March 2022 and discovered Defendant’s use of the Energetix mark, its use
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`of the trade name Energetix, and its operation of a website using the domain name energetix.health.
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`{01812389;v1 }
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 4 of 8 PageID #: 4
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`16.
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`On April 12, 2021, Plaintiff contacted Defendant by electronic mail informing
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`Defendant of Plaintiff’s rights, indicating that Defendant’s mark and Plaintiff’s Marks were
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`confusingly similar, and asking Defendant to cease and desist from any further use of the term
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`Energetix in any form. Plaintiff did not receive a response to its April 12, 2022 letter. A copy of
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`this letter is attached as Exhibit B.
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`17.
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`Defendant’s use of Energetix as a trademark and trade name has caused and/or will
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`likely cause confusion in the marketplace with Plaintiff’s use of Plaintiff’s Marks. Further,
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`Defendant’s use of the domain name energetix.health is likely to confuse consumers into believing
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`Plaintiff is the operator of the website or that Plaintiff sponsors, licenses, approves or is otherwise
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`affiliated with or benefits from the Defendant’s goods and services.
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`18.
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`Defendant’s use of Energetix as a trademark and trade name has caused and/or will
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`likely cause confusion, mistake, or deception to consumers with respect to the association (or lack
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`thereof) of Defendant to Plaintiff, or as to the origin, sponsorship or approval of Defendant’s goods
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`and services by Plaintiff.
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`19.
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`Defendant’s use of Energetix
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`in commercial advertising and promotion
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`misrepresents the nature, characteristics, qualities and origin of its goods.
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`20.
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`Plaintiff has been, and continues to be, injured by Defendant’s unauthorized and
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`unlawful use of Energetix. Further, Defendant’s use of Energetix as a trademark and trade name
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`has caused, and continues to cause, irreparable harm to Plaintiff and Plaintiff’s goodwill and
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`reputation.
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`COUNT I
`FEDERAL TRADEMARK INFRINGEMENT
`(15 U.S.C. § 1114)
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`21.
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`Plaintiff repeats and reasserts each of the foregoing allegations of this Complaint
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`as if fully set forth herein.
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 5 of 8 PageID #: 5
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`22.
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`As stated above, the U.S. Patent and Trademark Office determined that Plaintiff’s
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`Marks met all requirements for federal registration and issued registrations for both of these marks,
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`which are now incontestable.
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`23.
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`Defendant had constructive notice of the Plaintiff’s ‘137 Registration pursuant to
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`15 U.S.C. § 1072 at least as early as August 26, 2003 and of the Plaintiff’s ‘650 Registration at
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`least as early as November 18, 2003.
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`24.
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`Defendant is not affiliated or connected with or endorsed or sponsored by Plaintiff,
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`nor has Plaintiff approved any of Defendant’s activities.
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`25.
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`Defendant’s knowing and intentional unauthorized adoption and use of Energetix
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`in association with its goods and services is likely to cause, or has caused, consumers to mistakenly
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`believe that: (a) Defendant is affiliated with Plaintiff; (b) Defendant’s business is sponsored or
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`approved by Plaintiff; and/or (c) Defendant is otherwise associated with or has obtained permission
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`from Plaintiff to use Energetix in connection with the sale of goods and services by Defendant.
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`26.
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`By engaging in the unauthorized activities described above, Defendant has
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`infringed Plaintiff’s rights in its federally registered marks in violation of 15 U.S. C. § 1114.
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`27.
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`In view of the notice provided by Plaintiff to Defendant, such activities were, and
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`remain, willful and intentional.
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`28.
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`Defendant’s willful and intentional acts of infringement have caused and are
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`causing great and irreparable injury and damage to Plaintiff’s business, goodwill and reputation in
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`an amount that cannot be ascertained at this time and, unless restrained, will cause further
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`irreparable injury and damage.
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`29.
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` Plaintiff is entitled to injunctive relief against Defendant, and anyone acting in
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`concert with Defendant to restrain further acts of unfair competition, false advertising, and false
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 6 of 8 PageID #: 6
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`designation of origin and, after trial, to recover any damages proven to have been caused by reason
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`of Defendant’s aforesaid acts, and to recover enhanced damages based on Defendant’s willful,
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`intentional, and/or grossly negligent acts.
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`30.
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`Plaintiff is also entitled to recover Defendant’s profits as well as actual damages
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`suffered by Plaintiff in an amount to be determined at trial, plus treble damages and attorney fees
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`pursuant to 15 U.S.C. § 1117.
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`COUNT II
`FEDERAL UNFAIR COMPETITION
`(15 U.S.C. § 1125(a))
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`31.
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`Plaintiff repeats and reasserts each of the foregoing allegations of this Complaint
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`as if fully set forth herein.
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`32.
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`Defendant, by and through its knowing and intentional unauthorized adoption and
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`use of Energetix in association with its goods and services, has and continues to falsely designate
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`its goods and services as being derived or affiliated with those of Plaintiff.
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`33.
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`Defendant’s use of Energetix is likely to cause, or has caused, consumers to
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`mistakenly believe that: (a) Defendant is affiliated with Plaintiff; (b) Defendant’s business is
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`sponsored or approved by Plaintiff; or (c) Defendant is otherwise associated with or has obtained
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`permission from Plaintiff to use Energetix in connection with the promotion and sale of goods and
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`services by Defendant.
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`34.
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`By engaging in the unauthorized activities described above, Defendant has made,
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`and continues to make, false, deceptive, and misleading statements constituting false
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`representations and false advertising made in connection with the sale of goods or services
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`distributed in interstate commerce in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §
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`1125(a).
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 7 of 8 PageID #: 7
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`35.
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`In view of the notice provided to Defendant by Plaintiff, such activities were, and
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`remain, willful and intentional.
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`36.
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`Defendant’s willful and intentional acts of unfair competition, false advertising, and
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`false designation of origin, have caused and are causing great and irreparable injury and damage
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`to Plaintiff’s business and its goodwill and reputation in an amount that cannot be ascertained at
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`this time and, unless restrained, will cause further irreparable injury and damage.
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`37.
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`Plaintiff is entitled to injunctive relief against Defendant, and anyone acting in
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`concert with Defendant to restrain further acts of unfair competition, false advertising, and false
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`designation of origin and, after trial to recover any damages proven to have been caused by reason
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`of Defendant’s aforesaid acts, and to recover enhanced damages based on Defendant’s willful,
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`intentional, and/or grossly negligent acts.
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`38.
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`Plaintiff is also entitled to recover its attorney fees and prejudgment interest
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`pursuant to 15 U.S.C. § 1117.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Energetix Corporation respectfully requests a judgment against
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`Defendant providing as follows:
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`1.
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`Finding that Defendant committed acts of trademark infringement, unfair
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`competition, and unjust enrichment as alleged in this Complaint;
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`Entering judgment against Defendant and in favor of Plaintiff on all counts;
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`Finding that Defendant’s activities were in all respects conducted willfully and for
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`2.
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`3.
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`profit;
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`4.
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`Ordering that Defendant, its officers, members, agents, servants, employees and
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`attorneys, and those in active concert or participation with them or any of them, be permanently
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`enjoined and restrained from using the Energetix mark in any manner whatsoever, including using
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`Case 1:22-cv-00846-UNA Document 1 Filed 06/22/22 Page 8 of 8 PageID #: 8
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`the word “Energetix” in connection with providing goods and services in the health and wellness
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`sector related to Plaintiff’s Goods;
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`5.
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`Ordering Defendant to deliver up to Plaintiff for destruction, any and all
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`instructions, advertisements, or products that relate to the unlawful activities complained of herein;
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`6.
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`Ordering Defendant under 15 U.S.C § 1117 to account to Plaintiff for any and all
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`profits derived in connection with the unlawful activities complained of herein, and that Defendant
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`disgorge any such profits and pay all damages sustained by Plaintiff by reason of Defendant’s
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`actions complained herein;
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`7.
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`8.
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`9.
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`Awarding Plaintiff’s costs and attorney fees;
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`Awarding punitive damages against the Defendant;
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`Awarding Plaintiff both pre-judgment and post-judgment interest on each and every
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`damage award;
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`10.
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`Finding under 15 U.S.C. § 1117 that Defendant’s conduct has been willful, and
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`awarding Plaintiff reasonable attorney’s fees, costs, and disbursements of this civil action; and
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`11.
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`Awarding any other damages or relief that this Court deems just and proper.
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`Of Counsel:
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`Andrew D. Dorisio
`C. Anne Stewart
`DICKINSON WRIGHT PLLC
`300 West Vine Street, Suite 1700
`Lexington, KY 40507
`(859) 899-8740
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`Dated: June 22, 2022
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`{01812389;v1 }
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`ASHBY & GEDDES
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`/s/ Andrew C. Mayo
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`Andrew C. Mayo (#5207)
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`amayo@ashbygeddes.com
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`Attorneys for Plaintiff
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