throbber
Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 1 of 31 PageID 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`
`
`
`
`
`
`
`
`
`
`CASE NO:
`
`PHARMAZAM, LLC., a Florida
`limited liability company,
`
`
`
`
`
`v.
`
`THERMO FISHER SCIENTIFIC, INC.
`d/b/a LIFE TECHNOLOGIES CORPORATION,
` a foreign profit corporation,
`
`
`
`Defendant.
`
`________________________________________/
`
`
`
`
`Plaintiffs,
`
`COMPLAINT
`
`Plaintiff Pharmazam, LLC (“Pharmazam”), sues Defendant Thermo Fisher
`
`Scientific, Inc. d/b/a Life Technologies Corporation, (“Thermo Fisher”), collectively
`
`referred to as (“the Parties”), stating:
`
`Preliminary Statement
`
`Pharmazam was formed to provide genetic testing services to enable
`
`consumers and various medical professionals to better determine the most beneficial
`
`course(s) of treatment for a particular patient. Its proprietary app informs consumers
`
`of potential drug-to-drug and drug-to-gene interactions, providing valuable
`
`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 2 of 31 PageID 2
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`information that doctors can use to tailor treatment to a particular patient’s needs.
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`As part of its business, Pharmazam regularly enters into non-disclosure and
`
`confidentiality agreements with its vendors, business partners, and affiliates in order
`
`to protect its valuable proprietary and confidential business information. Thermo
`
`Fisher was one of those vendors, and entered into a Mutual Non-Disclosure
`
`Agreement with Pharmazam. Pharmazam ultimately elected not to engage Thermo
`
`Fisher to provide testing.
`
`After entering into that agreement, and unbeknownst to Pharmazam, Thermo
`
`Fisher entered into a business relationship with another company, Unlock MyDNA,
`
`which purports to conduct substantially identical genetic tests and provide services
`
`to consumers that are substantially identical to those provided by Pharmazam. As
`
`part of that relationship, on May 14, 2020, Thermo Fisher published a report titled
`
`“Pharmacogenomics on Axiom Precision Medicine Diversity Array Results from
`
`Unlock MyDNA Validation Testing,” which
`
`included various proprietary
`
`information. However, substantially all of the data in that report is in fact
`
`Pharmazam’s confidential and proprietary business information, and a significant
`
`portion of the data contained in that report is actually identified as Pharmazam’s
`
`data.
`
`Pharmazam’s confidential information and trade secrets were obtained by
`
`Thermo Fisher in one of two possible ways: (1) Thermo Fisher obtained
`
`
`
`2
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 3 of 31 PageID 3
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`Pharmazam’s information pursuant to the NDA executed in 2017, whereas, Thermo
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`Fisher’s use and disclosure of such information is a breach of the aforementioned
`
`NDA; or (2) Thermo Fisher obtained Pharmazam’s information from its joint
`
`venture partner, Unlock myDNA, at which Thermo Fisher is liable for use and
`
`disclosure of Pharmazam’s information if Thermo Fisher obtained this information
`
`from Unlock myDNA. Regardless of how it obtained that information, though,
`
`Thermo Fisher knew or should have known that the data it was publishing was the
`
`confidential and proprietary business information of Pharmazam, and published it
`
`anyway.
`
`As a result of Thermo Fisher’s actions, not only has Pharmazam’s trade secret
`
`information been misappropriated, it has been published to the world without
`
`Pharmazam’s knowledge or consent. As a result of these breaches of the Non-
`
`Disclosure Agreement and misappropriation of Pharmazam’s confidential and
`
`proprietary business information, Pharmazam has suffered significant damage.
`
`Parties and Jurisdiction
`
`1.
`
`This Court has subject matter jurisdiction under 18 U.S.C. § 1831, the
`
`Uniform Trade Act, 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338 because this
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`action involves substantial claims arising under the Lanham Act.
`
`2.
`
`This Court has jurisdiction over Pharmazam’s related state and
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`common-law claims pursuant to 28 U.S.C. §§ 1338 and 1367.
`
`
`
`3
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 4 of 31 PageID 4
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`3.
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`This Court has personal jurisdiction over Thermo Fisher because
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`Thermo Fisher has distributed, offered for sale, and/or sold genetic testing services
`
`within this State, has engaged in acts or omissions within this State causing injury,
`
`has manufactured or distributed products used or consumed within this State in the
`
`ordinary course of trade, or has otherwise made contacts with this State sufficient to
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`permit the exercise of personal jurisdiction.
`
`4.
`
`This District is a proper venue pursuant to 28 U.S.C. § 1391(b)(2)
`
`because a substantial part of the acts or omissions giving rise to Pharmazam’s claims
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`occurred in this District.
`
`5.
`
`Plaintiff Pharmazam, LLC is a Florida limited liability company with
`
`its principal place of business in the State of Florida, having its principal place of
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`business in Hillsborough County, Florida.
`
`6.
`
`Pharmazam is the record owner of the “Pharmazam” name and all
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`trademarks at issue in the instant action.
`
`7.
`
`On information and belief, Defendant Thermo Fisher is a corporation
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`organized and existing under the laws of the State of Delaware, having its principal
`
`place of business in Massachusetts, and conducting business routinely throughout
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`the State of Florida.
`
`
`
`4
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 5 of 31 PageID 5
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`General Allegations
`
`8.
`
`Pharmazam, through long and extensive research and development, and
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`the expenditure of a considerable amount of time and effort and large sums of
`
`money, has developed a substantial number of commercially valuable trade secrets
`
`and amount of confidential, proprietary, scientific, technical, and business
`
`information concerning the research, development, formulation, processing,
`
`production, and marketing of genetic testing services, enabling consumers and
`
`various medical professionals to better determine the most beneficial course(s) of
`
`treatment for a particular patient.
`
`9.
`
`Pharmazam has used this information to generate various written
`
`materials, drawings, processes, procedures, equipment, lists of suppliers and
`
`customers, and the like, and that information constitutes a valuable commercial asset
`
`for Plaintiffs.
`
`10. Pharmazam has taken reasonable steps to keep its confidential and
`
`proprietary business information secret, including but not limited to:
`
`a.
`
`restricting access to that information to employees who have a
`
`need to know it;
`
`b. maintaining that information on password-protected databases;
`
`
`
`5
`
`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 6 of 31 PageID 6
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`c.
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`requiring its employees, business partners, vendors, affiliates,
`
`and other individuals or entities granted access to that information to agree to
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`confidentiality and non-disclosure agreements; and
`
`11. Thermo Fisher is a business that, amongst other things, performs
`
`various genetic testing services for clients in different industries.
`
`12. Pharmazam and Thermo Fisher explored a potential relationship where
`
`Thermo Fisher would provide genetic testing services for Pharmazam, the results of
`
`which would be incorporated into information presented to Pharmazam’s customers
`
`through its app.
`
`13. During Pharmazam’s dealings with Thermo Fisher, it became apparent
`
`that in determining and evaluating a possible business relationship, the Parties would
`
`need to discuss and disclose valuable proprietary and confidential information,
`
`including Pharmazam’s trade secrets.
`
`14.
`
`In order to protect its confidential and proprietary business information,
`
`Pharmazam required that Thermo Fisher enter into a Mutual Non-Disclosure
`
`Agreement (the “NDA”) prior to any disclosure. A true and correct copy of the NDA
`
`is attached to this Complaint as Exhibit “A”.
`
`15. The NDA requires Thermo Fisher to, inter alia:
`
`(1) hold [Pharmazam’s] Confidential Information in confidence and to take
`all necessary precautions to protect such Confidential Information with the
`same degree of care which [Thermo Fisher] employs to its own confidential
`information, (2) not to divulge any of [Pharmazam’s] Confidential
`
`
`
`6
`
`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 7 of 31 PageID 7
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`Information or any information derived therefrom to any third party, (3) not
`to make any use of [Pharmazam’s] Confidential Information, and (4) not to
`copy or reverse engineer, or attempt to derive the composition of underlying
`information of any such [Pharmazam’s] Confidential Information.
`See Exhibit “A”.
`
`16.
`
`In reliance on Thermo Fisher’s entry into the NDA and agreement to
`
`keep Pharmazam’s trade secrets, proprietary information and other confidential
`
`information in confidence, Pharmazam disclosed confidential and proprietary
`
`information relating to its business to Thermo Fisher.
`
`17. At all times, Thermo Fisher knew that the information provided by
`
`Pharmazam was provided in confidence, and that Pharmazam considered that
`
`information to be trade secrets, proprietary information, or otherwise confidential
`
`information. By the plain terms of the NDA, Thermo Fisher knew that it was under
`
`an obligation not to disclose that information to anyone not a party to the NDA.
`
`18. Thermo Fisher knew that this information was a valuable commercial
`
`asset of Pharmazam, and that Pharmazam had expended significant time, effort, and
`
`money in developing the its confidential, proprietary and trade secret information.
`
`19. On May 14, 2020, Thermo Fisher announced its partnership with
`
`Unlock MyDNA, a direct competitor of Pharmazam. Unlock myDNA, is an entity
`
`formed by Wesley Moschetto. Moschetto is a former director of Pharmazam and
`
`obtained significant confidential information and trade secrets of Pharmazam during
`
`the course of his relationship with Pharmazam.
`
`
`
`7
`
`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 8 of 31 PageID 8
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`20. As part of this announcement, Thermo Fisher published a document on
`
`its website entitled “Pharmacogenomics on Axiom Precision Medicine Diversity
`
`Array Results from Unlock MyDNA Validation Testing” (the “Validation Report”).
`
`A true and correct copy of the Validation Report is attached to this Complaint as
`
`Exhibit “B”. The document has been published and remains published on the web
`
`site of Thermo Fisher’s venture partner, Unlock myDNA.
`
`21. Within the Validation Report, Thermo Fisher reveals its partnership
`
`with Unlock myDNA on pages 28 and 29 of the published document. Unlock
`
`myDNA confirms the venture partnership on its web site: “Unlock MyDNA has
`
`spent years working alongside Thermo Fisher Scientific, … in developing,
`
`validating and perfecting the performance of [their] diagnostic test. We have
`
`successfully validated thousands of live patient samples at a 100% Success Rate, all
`
`using Begley’s Rules of Reproducibility.”
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`22. The Validation Report contains substantial amounts of Pharmazam’s
`
`private and confidential business information, including a table of genetic markers
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`that is clearly and repeatedly designated as belonging to Pharmazam.
`
`23. By publishing
`
`the Validation Report, Thermo Fisher has
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`misappropriated Pharmazam’s confidential and proprietary business information,
`
`including trade secret information, by incorporating that information within the
`
`Validation Report for Thermo Fisher’s commercial advantage.
`
`
`
`8
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 9 of 31 PageID 9
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`24. Thermo Fisher has misappropriated, misused, and stolen Pharmazam’s
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`proprietary and confidential information, including trade secret information, in order
`
`to compete with Pharmazam in the field of genetic testing services.
`
`25. Thermo Fisher did not incur the expense and spend the time necessary
`
`to research and develop its own products, technology, sources, processes,
`
`procedures, equipment, and the like, for genetic testing services, but instead
`
`misappropriated this information from Pharmazam.
`
`26. Upon entering into the NDA, Thermo Fisher had knowledge and
`
`possessed of Pharmazam’s valuable trade secrets and confidential information which
`
`had been disclosed to them in confidence and in trust pursuant to the NDA.
`
`27. Thermo Fisher has breached the NDA and violated the confidence and
`
`trust placed in it by Pharmazam, by disclosing and using Pharmazam’s confidential
`
`and proprietary business information without Pharmazam’s consent.
`
`28. Regardless of how Thermo Fisher obtained Pharmazam’s confidential
`
`and proprietary business information, whether directly from Pharmazam or from
`
`Unlock myDNA, Thermo Fisher’s use and disclosure of that information was
`
`unlawful and wrong.
`
`29. Pharmazam’s confidential information and trade secrets were obtained
`
`by Thermo Fisher in one of two possible ways:
`
`
`
`9
`
`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 10 of 31 PageID 10
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`a. As describe above, Thermo Fisher obtained Pharmazam’s
`
`information pursuant to the NDA executed in 2017, whereas,
`
`Thermo Fisher’s use and disclosure of such information is a breach
`
`of the aforementioned NDA; or
`
`b. Thermo Fisher obtained Pharmazam’s information from its joint
`
`venture partner, Unlock myDNA. Thermo Fisher is liable for use
`
`and disclosure of Pharmazam’s confidential information and trade
`
`secretes if Thermo Fisher obtained this information from Unlock
`
`myDNA.
`
`30. Thermo Fisher was pursuing Pharmazam’s business since as early as
`
`May 22, 2017, when Daniel Leddy, a Thermo Fisher employee, began corresponding
`
`with Pharmazam’s managers in an effort to secure Pharmazam’s business.
`
`31. When Moschetto joined Pharmazam in 2018, he set about cultivating a
`
`relationship with Mr. Leddy and Dawn Waltman, another Thermo Fisher employee.
`
`After trying and failing to secure a business relationship between Thermo Fisher and
`
`Pharmazam, Moschetto and Thermo Fisher formed a partnership designed to get
`
`Thermo Fisher the business unlawfully.
`
`32. Thermo Fisher’s venture partner, Unlock myDNA, is an entity formed
`
`by Wesley Moschetto, a member and former director of Pharmazam. Moschetto was
`
`
`
`10
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 11 of 31 PageID 11
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`a director of Pharmazam and obtained the information disclosed by Thermo Fisher
`
`in Exhibit “B”, during the course of his relationship with Pharmazam.
`
`33. As a director, Moschetto owed a fiduciary duty to Pharmazam to protect
`
`its proprietary information. Moschetto also has a signed Non-Disclosure Agreement
`
`with Pharmazam. At all times, Thermo Fisher knew or should have known that
`
`Moschetto was an officer and director of Pharmazam.
`
`34.
`
`In July of 2018, Moschetto lobbied Pharmazam’s leadership to
`
`reconsider using Thermo Fisher for its lab testing. To that end, Thermo Fisher was
`
`given a second opportunity to pitch its business to Pharmazam, but Pharmazam
`
`ultimately chose to engage a different laboratory services provider. This opportunity
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`was provided to Thermo Fisher at Moschetto’s insistence and based upon his
`
`ongoing business relationship with Thermo Fisher.
`
`35. As part of that partnership, Moschetto formed Unlock myDNA and
`
`immediately entered into a nondisclosure agreement with Thermo Fisher. Indeed,
`
`while the Non-Disclosure Agreement is dated November 30, 2018, that date predates
`
`the organization of Unlock myDNA.
`
`36. At that time, Thermo Fisher knew or should have known that Moschetto
`
`was a director of Pharmazam, and that Moschetto and Thermo Fisher were both
`
`subject to non-disclosure obligations. Thermo Fisher also knew that its use of
`
`
`
`11
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 12 of 31 PageID 12
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`Pharmazam’s information to support a competing business was aiding and abetting
`
`a breach of Doe’s duties to Pharmazam.
`
`37. Finally, Thermo Fisher is liable for Moschetto’s and Unlock myDNA’s
`
`acts in furtherance of their partnership as a matter of law, as is the case with any
`
`partnership.
`
`38. Regardless of the means of obtaining Pharmazam’s confidential
`
`information and trade secrets, the use and disclosure of the information by Thermo
`
`Fisher is actionable and has caused Pharmazam enormous damage.
`
`39.
`
`If the information was obtained by Thermo Fisher from Pharmazam,
`
`then its use and disclosure was protected by the Non-Disclosure Agreement between
`
`Pharmazam and Thermo Fisher, making Thermo Fisher liable to Pharmazam for
`
`breach of contract and violations of the Defend Trade Secrets Act.
`
`40.
`
`If the information was obtained from Thermo Fisher’s venture partner
`
`Unlock myDNA, then it was obtained and used unlawfully because the principal
`
`behind Unlock myDNA was subject to a Non-Disclosure Agreement with
`
`Pharmazam, along with fiduciary duties to Pharmazam; the breach of which was, on
`
`information and belief, aided by Thermo Fisher.
`
`41. On information and belief, unless enjoined by this Court, Thermo
`
`Fisher will continue to disclose and use Pharmazam’s trade secrets and confidential
`
`information, and that ongoing misappropriation of Pharmazam’s proprietary and
`
`
`
`12
`
`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 13 of 31 PageID 13
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`confidential business information has caused and will continue to cause irreparable
`
`harm to Pharmazam.
`
`42. Thermo Fisher knowingly, willfully, and deliberately misappropriated
`
`Pharmazam’s trade secrets and other confidential information with full knowledge
`
`of the secret and confidential nature of that information and of the commercial value
`
`of that information. Thermo Fisher further wrongfully used and unlawfully exploited
`
`Pharmazam’s trade secrets and confidential information, resulting in damage to
`
`Pharmazam.
`
`43. Further, as evidenced in the Validation Report, Thermo Fisher blatantly
`
`used Pharmazam’s name and trademark, “Pharmazam” within the report without
`
`Pharmazam’s knowledge or consent.
`
`44.
`
`In Exhibit “B”, and on information and belief elsewhere, Thermo
`
`Fisher advertised, promoted, solicited, sold or offered for sale various services in
`
`connection with Pharmazam’s registered name and mark of “Pharmazam” for
`
`Thermo Fisher’s own benefit without Pharmazam’s knowledge or consent.
`
`45. Thermo Fisher’s breach of confidence and trust through the
`
`unauthorized disclosure and use of Pharmazam’s trade secrets and confidential
`
`information by the Thermo Fisher, and the misappropriation of Pharmazam’s trade
`
`secrets and confidential information, is greatly and irreparably damaging to
`
`
`
`13
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 14 of 31 PageID 14
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`Pharmazan, and Thermo Fisher will continue so to damage plaintiff unless restrained
`
`by this Court.
`
`Confidential Information and Trade Secrets
`
`46. Pursuant to the NDA, Thermo Fisher undertook a duty to protect any
`
`information related to Pharmazam’s proprietary state of the art HIPAA compliant
`
`Medication Management System, which includes mobile apps, internet applications,
`
`customized internet support portals, specialized monitoring, and reporting
`
`applications, kiosks, and other specialized systems and delivery and support
`
`methods. Further, any information related to Pharmazam’s physician ordered and
`
`reviewed specialized tests and FDA cleared test which consists of a PGx swab test
`
`kit (“Pharmazam PGx”) or a blood drop IgQ allergy test kit (“Pharmazam A”), 3rd
`
`party laboratory processing of said kit, logistics of all shipping and information
`
`routing, result submission to software managed access pints and inclusion into
`
`Pharmazam Systems to produce real-time patient specific reports and regulatory
`
`strategies.
`
`47.
`
`In addition, Thermo Fisher is under a duty to protect any information
`
`related to additional Pharmazam software including but not limited to “P-AI”, more
`
`particularly described as the Pharmazam Automated Critical Health Medication
`
`notification Engine, which provides automatic real-time analysis of an entire patient
`
`population, and alerts patients of potential adverse drug reactions and drug to
`
`
`
`14
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 15 of 31 PageID 15
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`medical conditions and issues with regard to drug to gene, drug to allergy, drug to
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`food, and drug to lifestyle interactions. Additionally, Thermo Fisher must also keep
`
`secret information regarding P-AI’s utilization to automatically identify chronic care
`
`patients and alert on potential unseen medical issues which may be resolved through
`
`the utilization of the Pharmazam System.
`
`48.
`
`In addition, Thermo Fisher has a continued legal duty to protect all
`
`information related to Pharmazam System Products, and/or Services in any manner
`
`including but not limited to (1) any product in any form or any state of development,
`
`technologies, kits, protocols, design methodologies, devises, platforms, workflows,
`
`computer code, design, configurations, compositions, use, manufacturing, layouts,
`
`and/pr packing of any of the foregoing; (2) extraction, manipulation, processing,
`
`analysis and/or storage of date related to any of the foregoing; and/or (3) ideas,
`
`concepts, designs, inventions, patentable or copyrightable subject matter, technical
`
`information, product or product ideas, processes, materials, material handling,
`
`composition, equipment, specification, methods, systems, plans, technologies,
`
`procedures, models, programs, software or code, data, models, specifications,
`
`drawings or diagrams, flow charts, roadmaps, documentation, know-how, trade
`
`secrets, works of authorship, derivative works, improvements or modifications and
`
`software.
`
`
`
`15
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 16 of 31 PageID 16
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`49. All conditions precedent to the maintenance of this action have
`
`occurred, have been satisfied, or have been waived.
`
`COUNT I
`Breach of Contract – Confidentiality Agreement
`
`1.
`
`Pharmazam restates and incorporates the allegations contained in
`
`paragraphs 1-35 as if fully set forth herein.
`
`2.
`
`Pharmazam entered into the NDA with ThermoFisher, with an effective
`
`date of May 31, 2017. See Exhibit “A”.
`
`3.
`
`4.
`
`The NDA is an enforceable contract.
`
`This agreement obligated Thermo Fisher to hold Plaintiffs’ confidential
`
`and proprietary information disclosed to Thermo Fisher in trust for the Plaintiffs and
`
`not to use said information or to disclose information to outsiders.
`
`5.
`
`Pursuant to Exhibit “B”, and additional information and belief, in
`
`breach of the terms of the NDA, Thermo Fisher did not hold Pharmazam’s said
`
`confidential proprietary information in trust, but instead wrongfully used the
`
`information and wrongfully disclosed that information to outsiders.
`
`6.
`
`As a direct result of Thermo Fisher’s breach of the NDA, Pharmazam
`
`has been suffered damages in an amount to be determined at trial.
`
`WHEREFORE, Pharmazam seeks a judgment against Thermo Fisher for
`
`breach of contract, damages in an amount to be determined at trial, post-judgment
`
`
`
`16
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`

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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 17 of 31 PageID 17
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`interest, its reasonable costs and attorneys’ fees associated with the maintenance of
`
`this action, and such further relief as this Court deems just and proper.
`
`COUNT II
`Trade Secret Misappropriation –Florida Statute § 688.001 and Uniform Trade
`
`Secrets Act
`
`7.
`
`Pharmazam restates and incorporates the allegations contained in
`
`paragraphs 1-35 as if fully set forth herein.
`
`8.
`
`The information entrusted to Thermo Fisher constitute trade secrets in
`
`that they
`
`a.
`
`constitute information that derives independent economic value
`
`from not being generally known to the public or to other persons who can
`
`obtain economic value from its disclosure or use; and
`
`b.
`
`have been the subject of reasonable efforts to maintain their
`
`secrecy.
`
`9.
`
`Thermo Fisher was fully aware of the confidential and trade secret
`
`nature of the information received form Pharmazan.
`
`10. Further, Thermo Fisher was fully aware of the confidential and trade
`
`secret nature of the information received from Unlock myDNA.
`
`11. Thermo Fisher’s improper use of Pharmazam’s trade secret information
`
`was deliberate and intentional.
`
`
`
`17
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`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 18 of 31 PageID 18
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`12. Thermo Fisher’s deliberate and
`
`intentional actions
`
`in using
`
`Pharmazam’s
`
`confidential
`
`information
`
`and
`
`trade
`
`secret
`
`information
`
`constitute trade secret misappropriation.
`
`13. Thermo Fisher’s actions are the direct and proximate cause of damages
`
`to Pharmazam.
`
`14. As
`
`a direct
`
`and proximate
`
`cause of Thermo Fisher’s
`
`trade secret misappropriation, Thermo Fisher has been unjustly enriched in an
`
`amount to be determined at trial.
`
`15. Thermo Fisher’s misappropriation of Pharmazam’s trade secrets was
`
`willful and malicious.
`
`16. Thermo Fisher has irreparably injured Pharmazam, and such injury will
`
`continue unless enjoined by this Court.
`
`17. As a result of Thermo Fisher’s acts and omissions, Pharmazam is
`
`entitled to recover damages.
`
`18. Pharmazam seeks temporary and permanent injunctive relief.
`
`WHEREFORE, Pharmazam seeks a judgment against Thermo Fisher,
`
`damages in an amount to be determined at trial, post-judgment interest, entry of a
`
`temporary and permanent injunction enjoining Thermo Fisher from using any of
`
`Pharmazam’s misappropriated trade secrets, compelling the return of any retained
`
`documentation that constitute or contain Pharmazam’s trade secrets, its reasonable
`
`
`
`18
`
`

`

`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 19 of 31 PageID 19
`
`costs and attorneys’ fees associated with the maintenance of this action, and such
`
`further relief as this Court deems just and proper.
`
`COUNT III
`Trade Secret Misappropriation – Defend Trade Secret Act of 2016
`
`19. Pharmazam restates and incorporates the allegations contained in
`
`paragraphs 1-35 as if fully set forth herein.
`
`20. This claim by Pharmazam is against Thermo Fisher for violation of the
`
`Defend Trade Secrets Act (“DTSA”) 18 U.S.C. § 1831, et seq.
`
`21. The information entrusted to Thermo Fisher constitute trade secrets in
`
`that they;
`
`a.
`
`constitute information that derives independent economic value
`
`from not being generally known to the public or to other persons who can
`
`obtain economic value from its disclosure or use; and
`
`b.
`
`have been the subject of reasonable efforts to maintain their
`
`secrecy.
`
`22. Thermo Fisher was fully aware of the confidential and trade secret
`
`nature of the information received from Pharmazan.
`
`23. Further, Thermo Fisher was fully aware of the confidential and trade
`
`secret nature of the information received from Unlock myDNA.
`
`24. Thermo Fisher’s improper use of Pharmazam’s trade secret information
`
`was deliberate and intentional.
`
`
`
`19
`
`

`

`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 20 of 31 PageID 20
`
`25. Thermo Fisher’s deliberate and
`
`intentional actions
`
`in using
`
`Pharmazam’s
`
`confidential
`
`information
`
`and
`
`trade
`
`secret
`
`information
`
`constitute trade secret misappropriation.
`
`26. Thermo Fisher’s actions are the direct and proximate cause of damages
`
`to Pharmazam.
`
`27. As
`
`a direct
`
`and proximate
`
`cause of Thermo Fisher’s
`
`trade secret misappropriation, Thermo Fisher has been unjustly enriched in an
`
`amount to be determined at trial.
`
`28. Thermo Fisher has engaged in willful and malicious misappropriation
`
`and as a result, Pharmazam is entitled to twice the amount of its actual damages
`
`and/or the amounts by which Thermo Fisher have been unjustly enriched as
`
`exemplary damages pursuant to 18 U.S.C. § 1836(b)(3)(C).
`
`29. Thermo Fisher has irreparably injured Pharmazam, and such injury will
`
`continue unless enjoined by this Court.
`
`30. As a result of Thermo Fisher’s acts and omissions, Pharmazam is
`
`entitled to recover damages.
`
`31. Because Thermo Fisher willfully and maliciously misappropriated its
`
`trade secrets, Pharmazam is also entitled to its attorney's fees associated with the
`
`maintenance of this action pursuant to 18 U.S.C. 1826(b)(3)(D).
`
`
`
`20
`
`

`

`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 21 of 31 PageID 21
`
`32. Pharmazam seeks temporary and permanent injunctive relief, pursuant
`
`to 18 U.S.C. § 1836(b)(3)(A).
`
`WHEREFORE, Pharmazam seeks a judgment against Thermo Fisher,
`
`damages in an amount to be determined at trial, post-judgment interest, entry of a
`
`temporary and permanent injunction enjoining Thermo Fisher from using any of
`
`Pharmazam’s misappropriated trade secrets, compelling the return of any retained
`
`documentation that constitute or contain Pharmazam’s trade secrets, its reasonable
`
`costs and attorneys’ fees associated with the maintenance of this action, and such
`
`further relief as this Court deems just and proper.
`
`Count IV
`Federal Trademark Infringement – 15 U.S.C. § 1114 & Lanham Act
`
`33. Pharmazam restates and incorporates the allegations contained in
`
`paragraphs 1-35 as if fully set forth herein.
`
`34. Thermo Fisher’s use of Pharmazam’s name in connection with genetic
`
`testing services identical to those provided by Pharmazam under its own
`
`“Pharmazam” name and trademarks has caused and is likely to cause confusion, to
`
`cause mistake, or to deceive persons into the erroneous belief that the services
`
`promoted by Thermo Fisher were authorized, sponsored by or connected in some
`
`way with Pharmazam.
`
`35. Thermo Fisher’s conduct as described in this Complaint was carried out
`
`with the intent and purpose of appropriating and trading upon the goodwill and
`
`
`
`21
`
`

`

`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 22 of 31 PageID 22
`
`reputation of Pharmazam, and of passing off Thermo Fisher’s services, knowledge,
`
`information and services as Pharmazam’s.
`
`36. Thermo Fisher’s acts were undertaken without the knowledge or
`
`consent of Pharmazam and without license by Pharmazam.
`
`37. Thermo Fisher’s acts constitute willful and deliberate infringement of
`
`Pharmazam’s federally registered trademarks, US Serial Number: 87492314 & US
`
`Serial Number: 87492318, in violation of Section 32(1) of the Lanham Act, as
`
`amended, 15 U.S.C. § 1114.
`
`38. The willful and wanton nature of Thermo Fisher’s conduct constitutes
`
`an exceptional case, and Pharmazam is entitled to its reasonable attorneys’ fees as a
`
`result.
`
`39. Thermo Fisher has caused and is likely to continue causing substantial
`
`injury Pharmazam, and Pharmazam is entitled to injunctive relief and to recover any
`
`and all damages, costs, and reasonable attorneys' fees as provided under 15 U.S.C.
`
`§§ 1114, 1116 and 1117.
`
`WHEREFORE, Pharmazam seeks a judgment against Thermo Fisher,
`
`damages in an amount to be determined at trial, post-judgment interest, its
`
`reasonable costs and attorneys’ fees associated with the maintenance of this action,
`
`and such further relief as this Court deems just and proper.
`
`
`
`22
`
`

`

`Case 8:21-cv-02898-MSS-JSS Document 1 Filed 12/14/21 Page 23 of 31 PageID 23
`
`Count V
`Florida Trademark Infringement – Florida Statute § 495.131
`
`40. Pharmazam restates and incorporates the allegations contained in
`
`paragraphs 1-35 as if fully set forth herein.
`
`41. Pharmazam owns the federally registered trademarks, US Serial
`
`Number: 87492314 & US Serial Number: 87492318, for the mark and specific style
`
`of the name/term “Pharmazam”.
`
`42. Pharmazam has the exclusive right to use the name “Pharmazam” in the
`
`State of Florida in respect of genetic testing services and related services.
`
`43. Thermo Fisher has used, offered to sell, advertised, and promoted its
`
`genetic testing services in connection with Pharmazam’s registered trademark in a
`
`manner that is likely to cause confusion or mistake or to deceive customers as to the
`
`affiliation, connection or association of Thermo Fisher with Pharmazam or as to the
`
`origin, sponsorship or approval of Thermo Fisher’s services by Pharmazam.
`
`44. On information and belief, Thermo Fisher’s conduct as described in this
`
`Complaint was undertaken with full knowledge of Pharmazam’s rights in and to the
`
`name and mark of “Pharmazam”, with the intent to cause confusion or mistake or to
`
`deceive the public.
`
`45. Thermo Fisher’s conduct as described in this Complaint was
`
`un

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