Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`NOTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`Case No. _________________
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`JARED R. WHEAT, an Individual,
`and BLACKSTONE LABS, LLC,
`a Florida Limited Liability Company,
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`Plaintiffs,
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`v.
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`SUPPLEMENT SCIENCE CORP.,
`a New York Corporation d/b/a
`CONDEMNED LABORATORIEZ,
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`Defendant.
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`
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`COMPLAINT
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`Plaintiffs Jared R. Wheat and Blackstone Labs, LLC (“Blackstone”) file this
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`Complaint against Defendant Supplement Science Corp. d/b/a Condemned Labz
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`(“Condemned Labz”) and allege as follows:
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`THE PARTIES
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`1.
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`Plaintiff Jared R. Wheat is an individual residing in Johns Creek,
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`Georgia. Mr. Wheat owns the registered ARSON® trademark for dietary and
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`nutritional supplements.
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`IN THE UNITED STATES DISTRICT COURT
`NOTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`Case No. _________________
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`
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`JARED R. WHEAT, an Individual,
`and BLACKSTONE LABS, LLC,
`a Florida Limited Liability Company,
`
`Plaintiffs,
`
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`v.
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`SUPPLEMENT SCIENCE CORP.,
`a New York Corporation d/b/a
`CONDEMNED LABORATORIEZ,
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`Defendant.
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`
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`COMPLAINT
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`
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`Plaintiffs Jared R. Wheat and Blackstone Labs, LLC (“Blackstone”) file this
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`Complaint against Defendant Supplement Science Corp. d/b/a Condemned Labz
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`(“Condemned Labz”) and allege as follows:
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`THE PARTIES
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`1.
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`Plaintiff Jared R. Wheat is an individual residing in Johns Creek,
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`Georgia. Mr. Wheat owns the registered ARSON® trademark for dietary and
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`nutritional supplements.
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 2 of 15
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`2.
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`Plaintiff Blackstone is a Florida limited liability company having its
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`principal address at 1120 Holland Drive, Suite 14, Boca Raton, Florida 33487.
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`Blackstone markets and sells a dietary supplement called ARSON in the Northern
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`District of Georgia and throughout the United States.
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`3.
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`Defendant Condemned Labz is a New York corporation having its
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`registered office at 2139 East 3rd Street, Brooklyn, New York, 11223 and its
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`registered agent at such address is Vincent Miletti. Condemned Labz markets and
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`sells a dietary supplement called ARSYN in the Northern District of Georgia and
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`throughout the United States.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction over this action under 28
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`U.S.C. §§ 1331 (federal question), 1332 (diversity), 1338 (trademarks and unfair
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`competition), and 15 U.S.C. § 1121 (Lanham Act claims), as this case is between
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`citizens of different states and the amount in controversy, exclusive of interest and
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`costs, exceeds $75,000.
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`5.
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`Pursuant to 28 U.S.C. § 1367, this Court also has supplemental
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`jurisdiction over Plaintiffs’ claims arising from the laws of the State of Georgia as
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`those claims are substantially related to the causes of action over which the Court
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`has original jurisdiction.
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`2
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 3 of 15
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`6.
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`This Court has personal jurisdiction over Condemned Labz pursuant to
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`O.C.G.A. § 9-10-91 because Condemned Labz regularly transacts and solicits
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`business in the Northern District of Georgia and has committed tortious acts
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`(trademark infringement and unlawful trade practices) within this District.
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`Condemned Labz has also caused tortious injury in this District by tortious actions
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`committed outside of this District. By way of example and without limitation,
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`Condemned Labz has purposefully placed goods bearing an infringing trademark
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`into the stream of commerce with the knowledge and expectation that such products
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`would be purchased throughout the United States, including in the Northern District
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`of Georgia, and said goods have been and continue to be purchased in this District.
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`7.
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`Venue is proper under 28 U.S.C. § 1391(b),(c) because Condemned
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`Labz transacts business and has committed tortious acts within the Northern District
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`of Georgia, and the owner of the subject trademark resides in the Northern District
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`of Georgia.
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`BACKGROUND FACTS
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`8. Mr. Wheat owns the registered ARSON® trademark for dietary and
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`nutritional supplements. A copy of the registration is attached as Exhibit A.
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`3
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 4 of 15
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`9. Mr. Wheat’s constructive use of the ARSON® trademark began upon
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`his filing of an “intent-to-use” application on March 22, 2016. 15 U.S.C. §§ 1051(b),
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`1057(c).
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`10. Mr. Wheat’s actual use of the ARSON® trademark began no later than
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`September 15, 2017 and he has since continuously used the trademark in commerce.
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`11. The ARSON® trademark registered on November 14, 2017.
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`12. Mr. Wheat has granted Blackstone a license to use the registered
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`ARSON® trademark.
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`13. Blackstone expends considerable resources developing, promoting,
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`branding, marketing, selling, and maintaining the quality of its products, including
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`its ARSON® dietary supplement.
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`14. Blackstone markets, sells, and distributes its ARSON® dietary
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`supplement via an extensive network of wholesale, Internet, and retail outlets such
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`as health food stores, gyms and fitness centers throughout the United States.
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`15. Through long-term use and extensive promotion, the registered
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`ARSON® trademark has established significant goodwill among consumers of
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`dietary supplements and has become an extremely valuable asset.
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`4
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 5 of 15
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`CONDEMNED LABZ’S INFRINGEMENT
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`16. Mr. Wheat and Blackstone recently became aware that Condemned
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`Labz was and is selling dietary supplements in the United States bearing an
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`infringing “ARSYN” product name.
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`17. The infringing ARSYN product name and the registered ARSON®
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`trademark are used on the same goods (dietary supplements), which travel in the
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`same trade channels.
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`18. The infringing ARSYN product name is confusingly similar in
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`appearance, sound, and meaning to the registered ARSON® trademark and conveys
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`a similar commercial impression to consumers of dietary supplements.
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`19. Consumers encountering the infringing ARSYN product name and the
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`registered ARSON® trademark in the marketplace are, and are likely to be, confused
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`as to the source of the goods.
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`20. Condemned Labz had constructive notice of the registered ARSON®
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`trademark as of November 14, 2017, the date of its registration. 15 U.S.C. § 1072.
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`21. Condemned Labs had actual notice of the registered ARSON trademark
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`no later than February 22, 2019.
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`5
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 6 of 15
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`22. On February 22, 2019, the United States Patent and Trademark Office
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`refused to register an application for ARSYN for dietary supplements, citing the
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`registered ARSON® trademark as its basis for refusal and finding:
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`• “The marks are essentially phonetic equivalents and thus sound similar.”
`Exhibit B, p. 2.
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`• “In this case, the goods in the application and registration are nearly
`identical. Therefore, it is presumed that the channels of trade and class of
`purchasers are the same for these goods. Specifically, both applicant and
`registrant have identified their goods as “dietary and nutritional
`supplements.” Id., p. 3 (internal citations omitted).
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`• “[T]here is a likelihood of confusion and registration is refused pursuant
`to Section 2(d) of the Lanham Act.” Id.
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`23. After receiving the USPTO’s findings, Condemned Labz continued to
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`sell goods bearing the infringing ARSYN product name.
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`24. Condemned Labz’s infringement capitalizes upon the goodwill of the
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`ARSON® registration and damages its value by confusing, and thus harming,
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`consumer perception of the ARSON® dietary supplement.
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`25. As a direct and proximate result of Condemned Labz’ unfair, deceptive
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`and unlawful acts, Mr. Wheat and Blackstone have suffered ascertainable damages
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`in the form of diverted and lost sales.
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`26. To remedy Condemned Labz’ infringing conduct, counsel for Mr.
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`Wheat sent Condemned Labz a letter on July 6, 2020 setting out his exclusive rights
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`6
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 7 of 15
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`to use the registered ARSON® trademark. Condemned Labz, however, did not cease
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`its infringing conduct.
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`COUNT I
`Trademark Infringement under 15 U.S.C. § 1125(a)
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`27. Mr. Wheat and Blackstone incorporate by reference all preceding
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`paragraphs as though fully set forth herein.
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`28. Without authorization or consent, Condemned Labz sold, and continues
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`to sell, in interstate commerce dietary supplements bearing the infringing ARSYN
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`product name.
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`29. Condemned Labz had constructive notice of the registered ARSON®
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`trademark on November 14, 2017 and had actual notice no later than February 22,
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`2019.
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`30. Despite said notice, Condemned Labz continued to sell in interstate
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`commerce dietary supplements bearing the infringing ARSYN product name.
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`31. Condemned Labz’ use of the infringing ARSYN product name does,
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`and is likely to, cause confusion, mistake, and deception amongst consumers of
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`dietary supplements, in violation of 15 U.S.C. § 1125(a).
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`7
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 8 of 15
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`32. Condemned Labz used the infringing ARSYN product name with
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`willful and deliberate intent to trade and capitalize on the goodwill established in the
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`registered ARSON® trademark.
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`33. Pursuant to 15 U.S.C. § 1117(a), Mr. Wheat and Blackstone should be
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`awarded their actual damages, costs and attorney fees, and Condemned Labz’s
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`profits derived from its infringing activities. Also, because Condemned Labz
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`engaged in its infringing activities knowingly and willfully, Mr. Wheat and
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`Blackstone should be awarded three times their damages, or three times Condemned
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`Labz’ profits from its unlawful activities, whichever amount is greater.
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`34. As a direct and proximate result of Condemned Labz’ infringement,
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`Mr. Wheat and Blackstone suffered damage to the goodwill and reputation of the
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`ARSON® registration, as well as ascertainable damages in the form of diverted or
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`lost sales.
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`35. Mr. Wheat and Blackstone are without adequate remedy at law for the
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`damages they continue to sustain due to Condemned Labz’s use of the infringing
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`ARSYN product name, and Condemned Labz’s infringing activities will continue
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`absent an injunction issued by this Court pursuant to 15 U.S.C. § 1116.
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`8
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 9 of 15
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`36. Mr. Wheat and Blackstone have been and continue to be damaged by
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`Condemned Labz’s infringing conduct and are therefore entitled to both monetary
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`and injunctive relief.
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`COUNT II
`Violation of Georgia’s Deceptive and Unfair Trade Practices Act,
`O.C.G.A. § 10-1-372(a)
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`37. Mr. Wheat and Blackstone incorporate by reference all preceding
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`paragraphs as though fully set forth herein.
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`38. Condemned Labz use, on competitive goods, of a product name
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`confusingly similar in appearance, sound, and meaning to Mr. Wheat’s registered
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`ARSON® trademark caused a likelihood of confusion, mistake and deception as to
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`the source of its goods.
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`39. Condemned Labz’ use of the infringing ARSYN product name on
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`dietary supplements – the same goods marketed under the ARSON® registration –
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`passes off the infringing ARSYN product as the ARSON® dietary supplement
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`offered by Blackstone, in violation of O.C.G.A. 10-1-372 (a)(1).
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`40. Condemned Labz’s affirmative actions described above cause a
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`likelihood of confusion and misunderstanding amongst consumers as to the source
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`of the dietary supplement offered under its infringing ARSYN product name,
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`9
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 10 of 15
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`constituting unfair and deceptive methods of competition, which are unlawful under
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`O.C.G.A. § 10-1-372(a)(2).
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`41. Condemned Labz’s use of the infringing ARSYN product name on
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`dietary supplements causes a likelihood of confusion or misunderstanding as to
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`affiliation, connection or association with the registered ARSON® trademark and
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`Blackstone, in violation of O.C.G.A. 10-1-372 (a)(3).
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`42. Condemned Labz’s use of the infringing ARSYN product name on
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`identical or substantially similar goods represents that the goods have sponsorship,
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`approval, characteristics, ingredients, uses, benefits, or quantities that they do not
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`have in violation of O.C.G.A. 10-1-372 (a)(5).
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`43. Condemned Labz’s actions create a likelihood of confusion and
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`misunderstanding amongst the consuming public, in violation of O.C.G.A. 10-1-372
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`(a)(12).
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`44. As a direct and proximate result of Condemned Labz’ infringement,
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`Mr. Wheat and Blackstone suffered damage to the goodwill and reputation of the
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`ARSON® registration, as well as ascertainable damages in the form of diverted or
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`lost sales.
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`45. Mr. Wheat and Blackstone are without adequate remedy at law for non-
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`monetary damages they continue to sustain as a direct and proximate result of
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`10
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 11 of 15
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`Condemned Labz’ infringement, and Condemned Labz’ unfair and deceptive trade
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`practices set forth herein will continue unless enjoined by this Court pursuant to
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`O.C.G.A. § 10-1-373.
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`46.
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`In accordance with O.C.G.A. 10-1-373, Mr. Wheat and Blackstone
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`should be awarded costs and attorney fees incurred in pursuing Condemned Labz’s
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`infringing activities.
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`47. Mr. Wheat and Blackstone are therefore entitled to equitable and
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`injunctive relief, costs, and reasonable attorney fees.
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`COUNT III
`Georgia Common Law Unfair Competition
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`48. Mr. Wheat and Blackstone incorporate by reference all preceding
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`paragraphs as though fully set forth herein.
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`49. Condemned Labz’s actions, as set forth above, constitute unfair
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`competition in violation of the common law of the State of Georgia.
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`50. No later than February 22, 2019, Condemned Labz’s infringement of
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`the registered ARSON® trademark became willful, thus warranting an award of
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`punitive damages under O.C.G.A. § 51-12-5.1.
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`11
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 12 of 15
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`51. Condemned Labz’s actions as described above have caused and will
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`continue to cause irreparable injury to Mr. Wheat and Blackstone and, unless
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`restrained, will continue to do so.
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`52. As a direct and proximate result of Condemned Labz’ conduct, Mr.
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`Wheat and Blackstone have suffered damages to the goodwill and reputation of the
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`ARSON® registration, as well as ascertainable damages in the form of diverted or
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`lost sales, in an amount to be determined at trial.
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`53. Condemned Labz acts of trademark infringement entitle Mr. Wheat and
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`Blackstone to both compensatory damages and punitive damages.
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`54. Mr. Wheat and Blackstone are without remedy at law, and Condemned
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`Labs’ activities will continue unless enjoined by this Court.
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`PRAYER FOR RELIEF
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`WHEREFORE, Jared R. Wheat and Blackstone pray for judgment against
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`Condemned Labz as follows:
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`1.
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`That Condemned Labz be adjudged to have violated 15 U.S.C. §
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`1125(a) by using its infringing ARSYN trademark on dietary supplements.
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`2.
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`That Mr. Wheat and Blackstone be awarded damages sustained as a
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`consequence of Condemned Labz’s conduct.
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`12
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 13 of 15
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`3.
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`That Mr. Wheat and Blackstone be awarded all profits Condemned
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`Labz obtained by selling goods bearing the infringing ARSYN product name.
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`4.
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`That all of Condemned Labz’s confusing, misleading, and deceptive
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`goods and materials be destroyed as permitted under 15 U.S.C. § 1118.
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`5.
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`For an order requiring Condemned Labz to deliver up for destruction
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`all tangible items bearing the infringing ARSYN product name, including without
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`limitation: labels, packaging, brochures, flyers, advertisements, and signs (and to
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`recall for such purpose any such products and materials in the possession, custody,
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`or control of any other person or entity) and to remove any reference to the ARSYN
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`product name from all websites over which it has a controlling influence.
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`6.
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`For preliminary and permanent
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`injunctive
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`relief prohibiting
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`Condemned Labz, its agents, subsidiaries, and affiliates, from using any trademark
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`confusingly similar to Mr. Wheat’s registered ARSON® trademark in connection
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`with its products, including any packaging and promotional materials.
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`7.
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`That Condemned Labz infringement be adjudged to constitute
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`deceptive, unfair, and unlawful practices under O.C.G.A. §10-1-372 (a).
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`8.
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`That Condemned Labz be found to have knowingly and willfully
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`infringed the registered ARSON® trademark and judgment be against Condemned
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`13
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 14 of 15
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`Labz in the amount of three times damages or Condemned Labz’ profits, whichever
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`amount is greater, together with attorneys’ fees, per 15 U.S.C. § 1117(a).
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`9.
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`That Mr. Wheat and Blackstone recover punitive damages.
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`10. That Mr. Wheat and Blackstone recover costs and reasonable attorney
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`fees.
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`11. That Mr. Wheat and Blackstone be granted prejudgment and post
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`judgment interest.
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`12. That Mr. Wheat and Blackstone have such other and further relief as
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`the Court deems just and proper.
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`JURY TRIAL DEMAND
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure and all applicable
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`law, Mr. Wheat and Blackstone request a trial by jury on all issues so triable.
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`14
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`Case 1:20-cv-04875-LMM Document 1 Filed 12/02/20 Page 15 of 15
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`Dated: December 2, 2020
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`Respectfully submitted,
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`
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`/s/ Arthur W. Leach
`Arthur W. Leach
`Georgia Bar No. 442025
`Art@ArthurWLeach.com
`Jessica H. Leach
`Georgia Bar No. 742326
`Jessica@ArthurWLeach.com
`The Law Office of Arthur W. Leach
`4080 McGinnis Ferry Rd, Suite 401
`Alpharetta, GA 30005
`Phone: (404) 786-6443
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`
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`ATTORNEYS FOR PLAINTIFFS
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`15
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