Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 1 of 14
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO. ________________
`
`
`MOBB HEALTH CARE LTD.,
`
`
`Plaintiff,
`
`
`vs.
`
`FELIX GERSHGORIN,
`KLARA GERSHGORIN, and
`INNO MEDICAL, LLC.
`
`Defendants.
`
`_______________________________/
`
`
`
`
`COMPLAINT
`
`Plaintiff, MOBB Health Care Ltd. (“MOBB Health”), a Canadian corporation, sues
`
`Defendants, FELIX GERSHGORIN, KLARA GERSHGORIN, and INNO MEDICAL, LLC
`
`(collectively, “Defendants”), and alleges as follows:
`
`PARTIES
`
`1.
`
`MOBB Health is a corporation organized and existing under the laws Canada with
`
`a principal place of business at 116A Viceroy Rd. Unit 5-6 Concord, Ontario L4K 2M1.
`
`2.
`
`Defendant Felix Gershgorin (“Felix”) is a Florida resident who resides at 241 188th
`
`Street, Sunny Isles Beach, FL 33160 and is otherwise sui juris.
`
`3.
`
`Defendant Klara Gershgorin (“Klara”) is a Florida resident who resides at 241
`
`188th Street, Sunny Isles Beach, FL 33160 and is otherwise sui juris.
`
`4.
`
`5.
`
`Felix and Klara (collectively, the “Gershgorins”) are husband and wife.
`
`Defendant Inno Medical, LLC (“Inno”) is a Florida limited liability company with
`
`a registered address at 16500 Collins Ave, Ste. 2353, Sunny Isles Beach, FL 33160.
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 2 of 14
`
`
`
`6.
`
`Both the Gershgorins are managers of Inno and are key operators and contributors
`
`of Inno. The Gershgorins also exercise complete dominion and control over Inno. Specifically, the
`
`Gershgorins (i) are responsible for marketing, selling, and distributing the accused product;
`
`(ii) oversee, control, and manage all employees of Inno and others who distribute the infringing
`
`products; and (iii) are the major motivator of business decisions and activities at Inno.
`
`7.
`
`Each Defendant is likewise liable in relation to the illegal activities described herein
`
`on the basis of that Defendant’s material participation in the illegal activities.
`
`JURISDICTION AND VENUE
`
`8.
`
`This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C.
`
`§ 1121, and 28 U.S.C. §§ 1331 and 1338 because this action involves substantial claims arising
`
`under the Lanham Act and the patent laws of the United States.
`
`9.
`
`Defendants are subject to personal jurisdiction in this Court because (i) Defendants
`
`are domiciled in Florida, doing business in Florida, and located in Florida; (ii) Defendants are
`
`operating, conducting, engaging in, and carrying on a business in Florida and maintain their offices
`
`in Florida; (iii) Defendants have committed, or aided, abetted, contributed to or participated in the
`
`commission of unfair competition, improper acts of unauthorized and unlicensed use of MOBB
`
`Health’s federally registered patent, and other tortious acts that have led to foreseeable harm; and
`
`(iv) Defendants have systematic and continuous contacts with Florida.
`
`10. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)-(c) and § 1400 as
`
`a substantial part of the events giving rise to MOBB Health’s claims occurred in this district,
`
`including the illegal sale of products that infringe the patent at issue in this lawsuit, and because
`
`this district is where Defendants reside and regularly transacts business.
`
`
`
`
`
`2
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 3 of 14
`
`
`
`COMMON ALLEGATIONS
`
`MOBB Health
`
`11. MOBB Health is a Canadian company who has developed, manufactured,
`
`marketed, sold, and distributed durable medical equipment for more than 10 years, including in
`
`the United States.
`
`12. MOBB Health has developed a line of award winning durable medical equipment
`
`that combine functionality, cutting edge design, and cost-conscious solutions while maintaining
`
`an emphasis on quality control. Many of those durable medical devices are protected by registered
`
`patents, including its “Swivel Shower Chair 2.0.”
`
`13. MOBB Health completely and tightly controls the manufacturing and branding
`
`supply chain to ensure that it is able to tightly protect both its intellectual property and the quality
`
`of the products made and branded with the MOBB trademarks. To that end, MOBB Health uses a
`
`vetted manufacturer in China to manufacture its products.
`
`14.
`
`Through these efforts and the investment of significant resources, MOBB Health
`
`has developed goodwill and a reputation for producing high-quality products with consumers and
`
`its retail partners.
`
`15.
`
`To protect its reputation and goodwill, MOBB Health has aggressively pursued
`
`infringers of its branded and patented products, successfully shutting down counterfeit operations
`
`in China in the past.
`
`The Partnership Dispute
`
`16.
`
`In late 2015, after years of MOBB Health positioning itself in the industry in
`
`Canada and around the world, the Gershgorins approached Mr. Moshe Bodman (who is an officer
`
`
`
`3
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 4 of 14
`
`
`
`of MOBB Health), in an effort to pitch themselves to serve as a seller/distributor of MOBB
`
`products inside the United States.
`
`17.
`
`The Gershgorins had no prior experience in durable medical equipment industry,
`
`including the development and manufacturing of durable medical equipment. However, the
`
`Gershgorins claimed to have relationships with big box retailers, like Sam’s Club and Walmart,
`
`who could distribute MOBB products in the U.S. market.
`
`18. After negotiations, Mr. Bodman, through a Canadian entity (2501712 Ontario),
`
`agreed to work with the Gershgorins as partners in an entity that would sell MOBB products to the
`
`United States market (the “Partnership”).
`
`19. At no time was the manufacturing, production, branding or licensing of products
`
`ever a part of the prospective or ultimate deal for the Gershgorins with respect to the Partnership.
`
`And at no point was the Partnership or the Gershgorins authorized to manufacture, brand, or patent
`
`any MOBB products. Instead, purchase orders were to be made by the Partnership to and through
`
`MOBB Health, and the Partnership would then sell the MOBB products in the U.S. market. And
`
`this is how the course of dealings continued for years.
`
`20. A partnership dispute eventually arose between the Gershgorins and 2501712
`
`Ontario, which was the subject of a lawsuit before the State of Florida’s 11th Judicial Circuit in
`
`Miami-Dade County, Florida.
`
`21. While the partnership dispute was pending, the Gershgorins surreptitiously created
`
`an entity called MedPlus Supply, Inc. The Gershgorins then used MedPlus Supply to compete with
`
`the Partnership based on their knowledge of MOBB Health’s target market and customers with the
`
`specific intent to infringe upon MOBB Health’s products through unauthorized sales of counterfeit
`
`products, including the Swivel Shower Chair 2.0.
`
`
`
`4
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 5 of 14
`
`
`
`22.
`
`The Gershgorins—without authorization or license—intentionally stole MOBB
`
`Health’s and MOBB Medical’s patents and trademarks, and then took them to an unauthorized
`
`producer in China, falsely represented to the Chinese facility they had authority from MOBB
`
`Health and MOBB Medical and caused counterfeit products to be made and shipped to the the
`
`Gershgorins in the United States in violation of the law and without authority, where they were
`
`marketed and sold.
`
`23. MOBB Health was only made aware of the counterfeit products and violative
`
`actions of the Gershgorins by accident and happenstance. The unauthorized Chinese facility (who
`
`the Gershgorins hired and caused to produce counterfeit MOBB products), which infringed the
`
`MOBB Health’s and MOBB Medical’s marks and patents based on instructions from the
`
`Gershgorins, then marketed the counterfeit products for sale around the globe.
`
`24. MOBB Health first learned on the unauthorized Chinese manufacturer’s sale of
`
`counterfeit products when one of its long-time customers in France called to advise that he was
`
`suspiciously offered products directly from an unfamiliar Chinese vendor, who was not known to
`
`the French customer and for whom the sales process was odd and curious compared to the course
`
`of dealing amongst the parties in the past. This French customer called Mr. Bodman, who was
`
`shocked to hear about the situation, the unauthorized proposition for the sale, and confirmed the
`
`purported seller was an unauthorized seller of MOBB products.
`
`25.
`
`The Gershgorins’ infringement was subsequently confirmed when a shipper sent
`
`the Bills of Lading for counterfeit products set to be shipped from China to the Gershgorins in
`
`Florida to MOBB Health’s address—by accident—alerting MOBB Health that not only was the
`
`unauthorized Chinese facility marketing counterfeit MOBB products around the globe, but also
`
`
`
`5
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 6 of 14
`
`
`
`that the Gershgorins were going around the Partnership by not purchasing direct from MOBB
`
`Health and instead bringing in counterfeit MOBB products directly to the U.S.
`
`26. MOBB Health then sought the help of the U.S. Customs and Border Patrol to
`
`prevent counterfeit products from being allowed into the country, but these shipments somehow
`
`evaded the agency and were entered into the U.S. where they were marketed and sold by the
`
`Gershgorins.
`
`27. MOBB Health requested that the Gershgorins stop their infringement, but they
`
`refused. To combat their infringement, MOBB Health and its affiliate, MOBB Medical, filed a
`
`lawsuit in federal court for patent and trademark infringement against the Gershgorins and
`
`MedPlus Supply. See MOBB Health Care Ltd., et al. v. Felix Gershgorin, et al., Case No. 20-CV-
`
`24589-ALTONAGA (S.D. Fla.).
`
`28. MOBB Health also initiated proceedings in China against the Chinese manufacturer
`
`of counterfeit MOBB products. During those proceedings, the Chinese entity produced a false and
`
`fraudulent letter created by the Gershgorins in or around October 2018 and signed by Felix. The
`
`letter falsely represented to the Chinese manufacturer that MOBB Health and MOBB Medical
`
`approved the Chinese facility’s production of MOBB products. This was false and the Gershgorins
`
`caused the Chinese manufacturer to produce and sell counterfeit MOBB patented and trademarked
`
`products without proper authorization.
`
`29. Despite the pendency of the partnership dispute and the federal lawsuit, the
`
`Gershgorins continued to cause a Chinese manufacturer to produce counterfeit versions of MOBB
`
`Health’s Swivel Shower Chair 2.0. The counterfeit version of the Swivel Shower Chair 2.0 was an
`
`inferior product that did not meet MOBB Health’s high standards for the manufacturing process
`
`or the quality of materials used.
`
`
`
`6
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 7 of 14
`
`
`
`30.
`
`The Gershgorins then sold the inferior counterfeit Swivel Shower Chair 2.0 to
`
`consumers and retailers in the U.S. MOBB Health then received a complaint from a consumer
`
`about defects with the counterfeit Swivel Shower Chair 2.0. Such complaints damage the
`
`reputation and goodwill that MOBB Health has earned over the years. When MOBB Health
`
`brought this issue to the attention of the Gershgorins, they brushed it aside.
`
`31.
`
`The partnership dispute and federal lawsuit eventually settled in March 2022. A
`
`material term of the settlement involved the Gershgorins’ and their affiliated entities releasing any
`
`claims challenging the validity of MOBB Health’s patents, including the patent protecting the
`
`Swivel Shower Chair 2.0.
`
`Defendants’ Infringing Conduct
`
`32.
`
`Less than a month after the state court lawsuit settled, the Gershgorins, using the
`
`knowledge they gathered from the Partnership, formed Inno to unfairly compete against MOBB
`
`Health in the manufacture and distribution of durable medical equipment.
`
`33.
`
`Inno is a direct competitor of MOBB Health. Inno sells similar products as MOBB
`
`Health through the same channels as MOBB Health. But Inno is doing so through improper means
`
`that violate the rights of MOBB Health.
`
`34.
`
`The Gershgorins, through Inno, are selling copycat versions of products developed
`
`and sold by MOBB Health. Specifically, Defendants are marketing an “Inno Swivel Shower Chair”
`
`that infringes the design patent of the Swivel Shower Chair 2.0 and a “folding toilet safety frame”
`
`that is identical in design and appearance as the folding toilet safety frame designed and sold by
`
`MOBB Health.
`
`35. Not only are Defendants’ copying the products sold by MOBB Health, but they are
`
`also mimicking the means that MOBB Health uses to market its products, including copying
`
`
`
`7
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 8 of 14
`
`
`
`MOBB Health’s website and stealing customer reviews of MOBB Health’s products as if they
`
`were reviews of Inno’s products.
`
`36. Defendants’ actions are causing the sale of inferior products in a manner that is
`
`substantially likely to confuse consumers as to the association between Defendants and MOBB
`
`Health, which has damaged and will continue to damage MOBB Health’s reputation and goodwill.
`
`COUNT I
`Willful Infringement – ‘501 Patent
`(MOBB Health against all Defendants)
`
`
`
`MOBB Health hereby re-alleges and re-incorporates Paragraphs 1-33 and 36 as if fully set
`
`forth herein.
`
`37. MOBB Health is the owner of United States Patent Number US D865,501 S (the
`
`“‘501 Patent”), which discloses a “swivel chair bearing” invented by Messrs. Moshe Bodman and
`
`Philip Wilcox, who assigned their rights to MOBB Health. The application for the ‘501 Patent was
`
`filed on December 2, 2016. The ‘501 Patent was granted to MOBB Health on November 5, 2019.
`
`A true and correct copy of the ‘501 Patent is attached as Exhibit A.
`
`38. Defendants have been, and are currently, selling, offering to sell, and importing
`
`and/or exporting products that infringe on the ‘501 Patent.
`
`39.
`
`Specifically, Defendants’ “Inno Swivel Shower Chair” is identical in appearance to
`
`the visual design found in the ‘501 Patent, and at the very least, is substantially the same.
`
`40.
`
`The infringing product, the Inno Swivel Shower Chair, has copied the overall
`
`ornamental appearance found in the ‘501 Patent, such that an ordinary observer with the
`
`knowledge of the prior art would purchase the infringing product believing it was the patented
`
`ornamental design disclosed in the ‘501 Patent. Its dimensions, shape, specifications, and overall
`
`
`
`8
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 9 of 14
`
`
`
`aesthetic embody, or are a colorable imitation of, the ‘501 Patent. The infringing product was
`
`intended to lead a purchaser to believe it was of the same MOBB Health design.
`
`41.
`
`The infringing product is being sold through Defendants’ distribution channels,
`
`including on www.innomedicalsupply.com/collections/bathroom/products/inno-swivel-shower-
`
`chair and www.swivelshowerchair.com/products/swivel-shower-chair?variant=18095502262361.
`
`42.
`
`By injecting their unlicensed, infringing product into the stream of interstate
`
`commerce with the intention of customers implementing and using this product, Defendants have
`
`been, and currently are, inducing infringement of the ‘501 Patent. There are no substantial, non-
`
`infringing uses for Defendants’ products directly infringing the ‘501 Patent.
`
`43. Defendants, or an agent of Defendants acting under Defendants’ direction and
`
`control, have been, and currently are, infringing the ‘501 Patent by selling and offering to sell in
`
`this judicial district and elsewhere throughout the United States, and importing into, and exporting
`
`from, the United States, without license or authority from MOBB Health, products infringing on
`
`the ‘501 Patent, including at least the Inno Swivel Shower Chair, to the damage and injury of
`
`MOBB Health.
`
`44.
`
`The Defendants’ infringement has been, and continues to be, willful, intentional,
`
`and in conscious disregard of MOBB Health’s rights in the ‘501 Patent.
`
`45. Unless enjoined by the Court, Defendants will continue to infringe the ‘501 Patent.
`
`46. As a direct and proximate result of Defendants’ infringement of the ‘501 Patent,
`
`MOBB Health has suffered, and will continue to suffer, irreparable injury for which there is no
`
`adequate remedy at law. MOBB Health has incurred damages, and until an injunction issues, will
`
`continue to be damaged by the infringement in an amount yet determined.
`
`
`
`9
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 10 of 14
`
`
`
`WHEREFORE, MOBB Health requests entry of judgment in its favor and against
`
`Defendants, jointly and severally, finding that Defendants have infringed or have induced or
`
`contributed to infringement of the ‘501 Patent; finding that Defendants’ infringement of the ‘501
`
`has been willful; preliminarily and permanently enjoining Defendants from further infringement
`
`of the ‘501 Patent; awarding damages sufficient to compensate MOBB Health for the
`
`infringement, together with pre- and post- judgment interest; awarding MOBB Health treble
`
`damages under 35 U.S.C. § 284; awarding MOBB Health attorney fees and costs under 35 U.S.C.
`
`§ 285; and granting such other and further relief that is just and proper.
`
`COUNT II
`Federal Unfair Competition - Lanham Act § 43(a), 15 U.S.C. § 1125(a)
`
`MOBB Health hereby re-alleges and re-incorporates Paragraphs 1-36 as if fully set forth
`
`
`
`herein.
`
`47. Defendants are unfairly competing with MOBB Health by selling, offering,
`
`advertising, or promoting products through false advertising and other means that copy the
`
`methods employed by MOBB Health to sell, offer, advertise, or promote its products.
`
`48. One of Defendants’ website, www.innomedicalsupply.com, is substantially
`
`identical in overall appearance and content to MOBB Health’s website. For example, Defendants’
`
`website features the following descriptions of Defendants’ good and services:
`
`49. Defendants copied the descriptions featured on their website from MOBB Health’s
`
`
`
`website:
`
`
`
`10
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 11 of 14
`
`
`
`50. Defendants’ “swivelshowerchair.com” website features the following description
`
`
`
`in the “About Us” section:
`
`51.
`
`The description in paragraph 43 was also copied from MOBB Health’s website:
`
`
`
`
`
`52. Not only are the above descriptions from Defendants’ websites copied from MOBB
`
`Health’s website, but they are also materially false. Defendants’ claim that the Inno Swivel Shower
`
`Chair has an “award winning design” is false. The Inno Swivel Shower Chair has received no
`
`awards for its design. Defendants’ representation that they have “20 years of experience” is also
`
`false. Inno was formed in only April 2022 and the Gershgorins had no experience with medical
`
`products prior to the Partnership, which was formed in only 2015. Defendants featured these false
`
`
`
`11
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 12 of 14
`
`
`
`representations on their website with the intent of confusing customers into believing they and
`
`their products are associated with MOBB Health.
`
`53. Defendants have also included on both their websites customer reviews of MOBB
`
`Health’s “Swivel Shower Chair 2.0” from Amazon and MOBB Health’s website. Defendants used
`
`these customer reviews with the intent to mislead potential customers into believing that the
`
`reviews are for their “Inno Swivel Shower Chair.” This intent is reinforced by the fact that
`
`Defendants describe the “Inno Swivel Shower Chair” as their “new design” for a swivel shower
`
`chair.
`
`54. Defendants’ actions as described above are likely to cause confusion, mistake, or
`
`deception as to the origin, sponsorship, or approval by MOBB Health of Defendants’ products
`
`(including the Inno Swivel Shower Chair), services, and commercial activities, or as to the
`
`affiliation, connection, or association between MOBB Health and Defendants, and thus constitute
`
`unfair competition in violation of 15 U.S.C. § l 125(a)(l)(A).
`
`55.
`
`The representations described on Defendants’ websites are false and misleading
`
`representations of fact to customers and potential customers as to the nature, characteristics,
`
`qualities, or origin of the Inno Swivel Shower Chair and other products they are selling, offering,
`
`advertising, or promoting, in violation of 15 U.S.C. § 1125(a)(l)(B).
`
`56. Defendants’ actions have injured and, in the absence of injunctive relief are likely
`
`to continue to injure, MOBB Health’s image, reputation, and goodwill by selling inferior products
`
`and creating consumer confusion and dissatisfaction, as well as diminution of the value of the
`
`reputation and goodwill associated with MOBB Health’s “Swivel Shower Chair 2.0.”
`
`57. Defendants’ willful and intentional activities constitute unfair competition in
`
`violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`
`
`
`12
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 13 of 14
`
`
`
`WHEREFORE, MOBB Health respectfully requests that this Court enter a final judgment
`
`in its favor and against Defendants, jointly and severally, enjoining Defendants from engaging in
`
`any further conduct that constitutes unfair competition with MOBB Health; awarding damages,
`
`costs, and fees pursuant to 15 U.S.C. § 1117; and granting such other and further relief that is just
`
`and proper.
`
`
`
`COUNT III
`Florida Common Law Unfair Competition
`
`MOBB Health hereby re-alleges and re-incorporates Paragraphs 1-36 and 47-57 as if fully
`
`set forth herein.
`
`58. Defendants’ conduct described herein constitutes deceptive and fraudulent conduct
`
`in their competition against MOBB Health for business.
`
`59. Defendants’ conduct described herein is likely to cause customer confusion as to
`
`the origin, sponsorship, or approval by MOBB Health of Defendants’ products, services, and
`
`commercial activities, or as to the affiliation, connection, or association between MOBB Health
`
`and Defendants.
`
`60. Defendants’ actions have injured and, in the absence of injunctive relief are likely
`
`to continue to injure, MOBB Health’s image, reputation, and goodwill by creating consumer
`
`confusion and dissatisfaction, as well as diminution of the value of the reputation and goodwill
`
`associated with MOBB Health’s “Swivel Shower Chair 2.0.”
`
`61. Defendants’ actions described above were done in bad faith; they were intentional,
`
`malicious, and willful, and were performed by Defendants with actual knowledge of both the
`
`wrongfulness of their conduct and the high probability that their conduct would injure MOBB
`
`Health, such that an award of punitive damages is appropriate.
`
`62. MOBB Health is entitled to appropriate relief, including injunctive relief.
`
`
`
`13
`
`

`

`Case 1:22-cv-22518-XXXX Document 1 Entered on FLSD Docket 08/09/2022 Page 14 of 14
`
`
`
`WHEREFORE, MOBB Health respectfully requests that this Court enter a final judgment
`
`in its favor and against Defendants, jointly and severally, enjoining Defendants from in any further
`
`conduct that constitutes unfair competition with MOBB Health; awarding compensatory and
`
`punitive damages and costs; and granting such other and further relief that is just and proper.
`
`DEMAND FOR JURY TRIAL
`
`MOBB Health is entitled to and demands a jury trial on all claims and issues.
`
`
`Dated: August 9, 2022
`
`
`
`Respectfully submitted,
`
`
`
`
`
`KOZYAK TROPIN & THROCKMORTON, LLP
`Attorneys for Plaintiff MOBB Health Care Ltd.
`2525 Ponce de Leon Boulevard, 9th Floor
`Coral Gables, Florida 33134
`Tel: (305) 372-1800
`Fax: (305) 372-3508
`
`
`By: /s/ Javier A. Lopez
`Javier A. Lopez, Esq.
`Fla. Bar No. 16727
`jal@kttlaw.com
`Michael R. Lorigas, Esq.
`Florida Bar No. 123597
`mlorigas@kttlaw.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`14
`
`