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Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 1 of 8 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Plaintiff,
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`V.
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`THRIVE SENIOR LIVING, LLC,
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`INNOVATIVE HEALTH, LLC,
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`Defendant.
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`CIVIL ACTION NO. 21-cv-4357
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`COMPLAINT
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`COMES NOW Thrive Senior Living, LLC, (“Plaintiff”) and sets forth its Complaint
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`against Innovative Health, LLC (“Defendant”) as follows:
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`JURISDICTION
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`1. This is an action for federal trademark infringement and unfair competition under the
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`United States Trademark Act of 1946, as amended, 15 U.S.C. § 1051 et seq.
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`2. This Court has jurisdiction over all causes of action set forth herein pursuant to 15
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`U.S.C. § 1121, 28 U.S.C. §§ 1331, 1338(a) and 1338(b).
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`3. Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 1391(b)
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`and § 1391(c) because Defendant committed the acts referenced in this Complaint within the
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`State of Illinois and within this judicial district and division, and/or because the Defendant is
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`subject to the court’s personal jurisdiction with respect to this action in this judicial district.
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`THE PARTIES
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`4. Plaintiff is a Georgia limited liability company with its principal place of business at
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`3280 Peachtree Road NE, Ste. 750, Atlanta, Georgia 30305.
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`5. On information and belief, Defendant is an Illinois limited liability company with its
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`principal place of business at 6177 N. Lincoln Ave. #301, Chicago, Illinois 60659.
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`RELEVANT FACTS
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`PLAINTIFF’S TRADEMARKS
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`6. Plaintiff owns, operates and/or manages independent living, assisted living, and
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`memory care communities under the name and marks THRIVE SENIOR LIVING and THRIVE
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`SENIOR LIVING (Stylized) (“Plaintiff’s Marks”).
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`7. Plaintiff has been providing these services under Plaintiff’s Marks in commerce in
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`the United States continuously since at least as early as 2012.
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`8. Plaintiff registered its THRIVE SENIOR LIVING Marks with the U.S. Patent and
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`Trademark Office (registration nos. 5,640,126 and 5,640,127). True and complete copies of the
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`Registrations are attached as Exhibit A, together with the U.S. Trademark Office status reports
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`for the registrations.
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`9. Plaintiff provides a variety of services at its communities, including memory care
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`services for residents with Alzheimer’s and other dementias.
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`10. Plaintiff also provides short-term rehabilitation services at its communities.
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`11. Plaintiff currently provides assisted living and memory care services under Plaintiff’s
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`Marks at twelve communities across thirteen states.
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`12. As recently as May 2021, Plaintiff has been underwriting new development senior
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`living opportunities in the Chicago market, and continues to look for opportunities to expand into
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`that market.
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`Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 3 of 8 PageID #:3
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`DEFENDANTS INFRINGING CONDUCT
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`13. On information and belief, Defendant owns and/or operates long-term and short-term
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`care communities in and around Chicago under the name THRIVE (“Infringing Mark”).
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`14. On information and belief, Defendant provides memory care services for persons
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`with Alzheimer’s disease and other dementias at its communities under the Infringing Mark.
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`15. On information and belief, Defendant provides short-term rehabilitative care at its
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`communities under the Infringing Mark.
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`16. On information and belief, Defendant began using the Infringing Mark for its
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`services no earlier than 2020, subsequent to Plaintiff’s first use and registration of Plaintiff’s
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`Marks.
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`17. On
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`information and belief, Defendant has
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`registered
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`the domain name
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`<thriveahead.com>.
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`18. On information and belief, Defendant advertises its short-term and long-term care
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`communities at a website located at the URL www.thriveahead.com.
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`19. On information and belief, Defendant’s use of the Infringing Mark has caused actual
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`consumer confusion, mistake, or deception regarding the source, sponsorship, or affiliation of
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`Defendant’s services.
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`20. Plaintiff has not authorized Defendant to use Plaintiff’s Marks on or in connection
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`with short-term care, long-term care, or memory care services.
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`21. Defendant had constructive notice of Plaintiff’s registered Marks pursuant to 15
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`U.S.C. § 1072.
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`22. Plaintiff sent a letter to Defendant on June 29, 2021 date informing Defendant of
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`Plaintiff’s federal trademarks registrations, alerting Defendant to the confusion its use of
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`Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 4 of 8 PageID #:4
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`THRIVE had caused, and demanding that Defendant cease and desist further use of THRIVE for
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`its short- and long-term care communities. In response, Defendant refused to stop using the mark.
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`COUNT I.
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`FEDERAL TRADEMARK INFRINGEMENT IN VIOLATION OF 15 U.S.C. § 1114
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`23. Paragraphs 1-22 are realleged and incorporated herein by reference.
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`24. Defendant’s use of the Infringing Mark in the advertising and sale of short-term
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`rehabilitative services and long-term memory care services is likely to cause confusion, or to
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`cause mistake, or to deceive, and is likely to cause purchasers and potential purchasers to falsely
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`believe that Defendant’s services are sponsored by, approved by, or affiliated with Plaintiff.
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`25. Defendant’s Infringing Mark is confusingly similar to the Plaintiff’s Marks and the
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`unauthorized use of the Infringing Mark by Defendant in commerce is likely to cause damage
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`and other irreparable injury to Plaintiff unless such use is enjoined by this Court, Plaintiff having
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`no adequate remedy at law.
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`26. Defendant’s use of marks in commerce that are identical and/or confusingly similar
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`to the Plaintiff’s Marks is an infringement of Plaintiff’s rights in and to its federally registered
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`Plaintiff’s Marks in violation of 15 U.S.C. § 1114.
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`27. Upon information and belief, Defendant’s aforesaid acts have been and are being
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`committed with the knowledge that such acts are likely to cause confusion, or to cause mistake,
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`or to deceive. Defendant’s acts are therefore intentional, willful, and are maliciously calculated to
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`cause confusion, to cause mistake, or to deceive. As such, this is an exceptional case.
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`28. In accordance with 15 U.S.C. § 1117, Plaintiff is entitled to recover from Defendant,
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`jointly and severally: (1) its profits, (2) any damages sustained by Plaintiff, and (3) the costs of
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`the instant action. Further, based upon the nature of Defendants’ violation of Plaintiff’s
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`Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 5 of 8 PageID #:5
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`trademark rights, Plaintiff is entitled to reasonable attorney’s fees and the trebling of such profits
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`or damages.
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`29. Pursuant to 15 U.S.C. § 1117(b), this Court shall award Plaintiff three times
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`Defendants’ profits or Plaintiff’s damages, whichever amount is greater, together with its
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`reasonable attorney’s fees, due to Defendant’s intentional use of a mark or designation knowing
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`such mark or designation to be counterfeit.
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`30. Pursuant to 15 U.S.C. § 1117(c), Plaintiff may elect to recover, in lieu of its actual
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`damages or Defendant’s profits, an award of statutory damages of not more than two million
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`dollars ($2,000,000) per counterfeit mark per type of goods or services sold, offered for sale, or
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`distributed in the United States for Defendant’s willful use of a counterfeit mark.
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`31. Plaintiff has been or is likely to be irreparably damaged by Defendant’s use of
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`counterfeit marks in the United States, and will continue to be irreparably damaged unless
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`permanently enjoined by this Court.
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`COUNT II.
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`FEDERAL UNFAIR COMPETITION
`IN VIOLATION OF 15 U.S.C. § 1125(A)
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`32. Paragraphs 1-22 are realleged and incorporated herein by reference.
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`33. In providing short- and long-term care services in commerce in the United States
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`under the THRIVE Mark, Defendant has used in connection with its services a false designation
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`of origin that has or is likely to cause confusion, to cause mistake, or to deceive others to believe
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`that Defendant’s services are sponsored by, approved by, originate with, or are affiliated with
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`Plaintiff.
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`34. Defendant has caused its services to be offered for sale in interstate commerce with
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`knowledge of such false designation of origin or description or representation.
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`5
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`Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 6 of 8 PageID #:6
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`35. Defendant has willfully promoted in commerce the sale of its services in a manner so
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`as to falsely designate an origin or an association with Plaintiff, with Plaintiff’s Marks, or with
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`Plaintiff’s services, so as to be likely to cause confusion or mistake among purchasers as to the
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`true origin, source, sponsorship, or affiliation of Defendant’s services, all to Defendant’s profit
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`and to Plaintiff’s damage.
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`36. Plaintiff has been and/or will be irreparably damaged by the use of such false
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`designation and/or representation, and will continue to be irreparably damaged unless Defendant
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`is enjoined by this Court, Plaintiff having no adequate remedy at law.
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`37. Defendant has intentionally traded upon the goodwill established by Plaintiff through
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`Defendant’s advertising and sales of its services under the Infringing Mark in interstate
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`commerce.
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`38. Defendant’s acts constitute unfair competition, false designation of origin, and false
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`description in violation of 15 U.S.C. § 1125(a).
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`39. In accordance with 15 U.S.C. § 1116, Plaintiff is entitled to a preliminary and
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`permanent injunction against the Defendant’s further use of the Infringing Marks.
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`40. In accordance with 15 U.S.C. § 1117, Plaintiff is entitled to recover from Defendant:
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`(1) its profits, (2) any damages sustained by Plaintiff, and (3) the costs of the instant action.
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`Further, based upon the nature of Defendant’s violation of Plaintiff’s trademark rights, Plaintiff
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`is entitled to reasonable attorney’s fees and the trebling of such profits or damages.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for a judgment of the Court as follows:
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`1)
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`That Defendant, and those persons in active concert or participation with
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`Defendant, be preliminarily and permanently enjoined and restrained from offering or providing
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`6
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`Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 7 of 8 PageID #:7
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`short-term care, long-term care, memory care, or related services, or promoting and/or
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`authorizing the sale or providing of such services, under the THRIVE Mark, or any other
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`designation, trademark or service mark that is likely to cause confusion, mistake, or deception as
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`to the source or sponsorship of Defendant’s services, or from otherwise infringing Plaintiff’s
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`THRIVE SENIOR LIVING Marks;
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`2)
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`That Defendant be directed to file with the Court and serve upon Plaintiff, no later
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`than ten (10) days after the issuance of an injunction, a report in writing and under oath, setting
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`forth in detail the manner and form in which Defendant has complied with the injunction of the
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`immediately preceding paragraph and any other provision of this Court’s Order.
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`3)
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`That an accounting be conducted and judgment be rendered against Defendant for:
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`a) all profits received by Defendant from its sale of services under the THRIVE
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`Mark;
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`b) all damages in an amount proven at trial from, inter alia, Defendant’s
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`trademark infringement pursuant to 15 U.S.C. § 1051;
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`c) any other actual and compensatory damages in an amount not presently
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`known, but to be computed during the pendency of this action;
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`d) alternatively, in lieu of its actual damages or Defendant’s profits, Plaintiff may
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`elect to recover statutory damages of not more than two million dollars per
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`mark per type of good or service sold or offered for sale for Defendant’s
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`intentional use of a counterfeit mark pursuant to 15 U.S.C. § 1117(c).
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`4)
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`That any profits or damages assessed against Defendant for trademark
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`infringement and unfair competition be trebled as provided by 15 U.S.C. § 1117;
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`7
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`Case: 1:21-cv-04357 Document #: 1 Filed: 08/16/21 Page 8 of 8 PageID #:8
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`5)
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`That Defendant be required to pay to Plaintiff monetary damages to be used for
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`corrective advertising to be conducted by Plaintiff.
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`6)
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`That Plaintiff have and recover its expenses in this suit, including but not limited
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`to its reasonable attorneys’ fees and expenses, recoverable under 15 U.S.C. § 1117(a).
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`7)
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`That Plaintiff have such other and further relief as this Court may deem just and
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`proper.
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`Respectfully submitted August 16, 2021.
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`/s/ Steven P. Mandell
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`Mark L. Seigel
`THE SEIGEL LAW FIRM LLC
`Georgia Bar No. 634617
`1397 Carroll Dr NW
`Atlanta, GA 30318
`Main: (770) 395-5920
`Fax: (770) 395-5921
`seigel@addipvalue.com
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`Steven P. Mandell (ARDC No. 6183729)
`MANDELL MENKES LLC
`1 N. Franklin St., Suite 3600
`Chicago, IL 60606
`Main: (312) 251-1000
`Fax: (312) 251-1010
`smandell@mandellmenkes.com
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`Attorneys for Plaintiff
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`8
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