throbber
Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.1 Filed 06/06/22 Page 1 of 23
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`THE MALHOTRA CENTER FOR
`PLASTIC SURGERY, P.C., a
`Michigan professional corporation,
`Plaintiff,
`
`v.
`ANN ARBOR CENTER FOR
`PLASTIC SURGERY, P.C., a
`Michigan corporation,
`
`Defendant.
`
`Case No. ________________
`
`Hon. ___________________
`
`COMPLAINT
`
`Plaintiff The Malhotra Center for Plastic Surgery, P.C. DBA Ann Arbor
`
`Plastic Surgery (“Plaintiff” or “The Malhotra Center”) hereby files this Complaint
`
`against Defendant Ann Arbor Center for Plastic Surgery, P.C. (“Defendant”)
`
`requesting damages and injunctive relief, and in support thereof alleges as follows:
`
`PRELIMINARY STATEMENT
`
`1.
`
`Defendant has unlawfully and willfully adopted and used the
`
`designation ANN ARBOR CENTER OF PLASTIC SURGERY, and variants
`
`thereof, to promote its plastic surgery services, despite Plaintiff’s long-standing prior
`
`rights in the almost identical trademark ANN ARBOR PLASTIC SURGERY for
`
`identical services. Plaintiff has been compelled to bring this action for federal and
`
`state common law trademark infringement, false advertising, federal and state unfair
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.2 Filed 06/06/22 Page 2 of 23
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`competition, violation of the Anti-Cybersquatting Consumer Protection Act, and
`
`unjust enrichment, because Plaintiff has priority of use of the mark ANN ARBOR
`
`PLASTIC SURGERY, and because of the likelihood of confusion in the relevant
`
`market between Plaintiff’s mark and Defendant’s infringing use of Plaintiff’s marks,
`
`as well as the instances of actual confusion that have occurred in a short period of
`
`time. Plaintiff alerted Defendant to this concern and Plaintiff’s rights in the mark
`
`ANN ARBOR PLASTIC SURGERY shortly after learning of Defendant’s
`
`infringing uses of this mark, but Defendant continues to offer and sell services under
`
`the mark ANN ARBOR CENTER FOR PLASTIC SURGERY, and similar variants
`
`thereof, thereby willfully infringing Plaintiff’s rights in the mark ANN ARBOR
`
`PLASTIC SURGERY with potential harm to Plaintiff’s reputation, potential
`
`customers, products, and services.
`
`2.
`
`This is a civil action for violation of the Anti-Cybersquatting Consumer
`
`Protection Act; common law trademark infringement, use of false designations of
`
`origin in commerce, false advertisement, and unfair competition, arising under
`
`Section 43(a) of the Lanham Act of 1946, as amended, 15 U.S.C. § 1125(a); violation
`
`of the Michigan Consumer Protection Act, M.C.L. § 445.901 et seq.; and trademark
`
`infringement, unfair competition, and unjust enrichment under Michigan common
`
`law.
`
`2
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.3 Filed 06/06/22 Page 3 of 23
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`3.
`
`The Malhotra Center brings this action to protect one of its most
`
`valuable assets, namely, the goodwill and consumer recognition The Malhotra
`
`Center has developed in the trademark ANN ARBOR PLASTIC SURGERY.
`
`4.
`
`Plaintiff seeks injunctive and monetary relief.
`
`THE PARTIES
`
`5.
`
`Plaintiff The Malhotra Center for Plastic Surgery, P.C. (“Plaintiff”) is
`
`a Michigan professional corporation with its principal place of business at 2320
`
`Washtenaw, Suite A, Ann Arbor, Michigan, 48104.
`
`6.
`
`Upon information and belief, Defendant Ann Arbor Center for Plastic
`
`Surgery, P.C. (“Defendant”), is a Michigan professional corporation, and may be
`
`served through its registered agent and President, Richard J. Beil, MD, at the
`
`company’s registered business address, 5333 McAuley Drive, Suite 5001, Ypsilanti,
`
`Michigan, 48197.
`
`JURISDICTION AND VENUE
`
`7.
`
`This action arises under the Lanham Act, 15 U.S.C. § 1125(a). This
`
`Court has jurisdiction over this action pursuant to 15 U.S.C. § 1121 (actions arising
`
`under the Federal Trademark Act), and 28 U.S.C. §§ 1331 (federal question),
`
`1338(a) (acts of Congress relating to trademarks), and 1338(b) (pendent unfair
`
`competition claims). The Court has supplemental jurisdiction over Plaintiff’s state
`
`law claims under 28 U.S.C. § 1367.
`
`3
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.4 Filed 06/06/22 Page 4 of 23
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`8.
`
`This Court has personal jurisdiction over Defendant because Defendant
`
`is a Michigan Professional Corporation that transacts, solicits, and does business in
`
`Michigan; because a substantial part of the relevant events occurred in this District,
`
`because Defendant has infringed Plaintiff’s federally protected trademark in this
`
`District; and because Defendant continues to infringe Plaintiff’s trademark in this
`
`District.
`
`9.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391
`
`because at least a substantial part of the events or omissions giving rise to the claims
`
`occurred in this District.
`
`FACTUAL BACKGROUND
`
`10.
`
`For over ten years, The Malhotra Center has provided services to
`
`patients including cosmetic and plastic surgery services; providing medical aesthetic
`
`procedures, namely, treating the skin with dermal fillers and botulinum toxin;
`
`providing cosmetic skin care services, namely, facials, chemical peels, micro
`
`dermabrasion, micro needling treatment services, cosmetic laser treatment; and
`
`providing other cosmetic services, namely, laser hair removal, laser peels,
`
`liposuction, cellulite treatments, body contouring treatments, injectable filler
`
`treatments, photo therapy, and skin care under the trademark ANN ARBOR
`
`PLASTIC SURGERY (referred to as the “Malhotra Center Services”).
`
`4
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`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.5 Filed 06/06/22 Page 5 of 23
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`11.
`
`The Malhotra Center is the owner of the mark ANN ARBOR PLASTIC
`
`SURGERY in the United States for use with The Malhotra Center Services.
`
`12.
`
`The Malhotra Center began use in commerce of the ANN ARBOR
`
`PLASTIC SURGERY mark in the United States at least as early as January 2015.
`
`The Malhotra Center is also the owner of a federal trademark application for ANN
`
`ARBOR PLASTIC SURGERY (“Plaintiff’s Mark” or “ANN ARBOR PLASTIC
`
`SURGERY Mark”), U.S. Trademark Application No. 97/353,408 for cosmetic and
`
`plastic surgery and related services, as indicated by the attached at Exhibit 1. The
`
`Malhotra Center has devoted significant marketing, advertising, and financial
`
`resources to developing and establishing in the minds of consumers that ANN
`
`ARBOR PLASTIC SURGERY signifies The Malhotra Center’s Services, including
`
`through use and promotion of Plaintiff’s Mark on
`
`its website at
`
`www.annarborplasticsurgery.com. As a result of these efforts, the ANN ARBOR
`
`PLASTIC SURGERY Mark is widely recognized by the consuming public as a
`
`designation of source for The Malhotra Center’s Services and has acquired
`
`distinctiveness and secondary meaning. The Malhotra Center has promoted the
`
`ANN ARBOR PLASTIC SURGERY Mark to customers and prospective customers
`
`nationwide, as illustrated on its website at Exhibit 2.
`
`13.
`
`The Malhotra Center has used the ANN ARBOR PLASTIC
`
`SURGERY Mark exclusively and extensively in connection with The Malhotra
`
`5
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.6 Filed 06/06/22 Page 6 of 23
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`Center Services and long before Defendant commenced any use of ANN ARBOR
`
`CENTER FOR PLASTIC SURGERY.
`
`14.
`
`The ANN ARBOR PLASTIC SURGERY Mark is distinctive, well-
`
`known, and widely recognized by the consuming public as a designation of source,
`
`and specifically as a designation of source of The Malhotra Center’s Services.
`
`15.
`
`The Malhotra Center has expended substantial time, effort, resources,
`
`and creative energies towards creating goodwill in the ANN ARBOR PLASTIC
`
`SURGERY Mark, and in establishing the public’s recognition of Plaintiff’s Mark as
`
`the source of The Malhotra Center’s high quality cosmetic and plastic surgery
`
`services. As a result of such use and promotion, the ANN ARBOR PLASTIC
`
`SURGERY Mark has acquired distinctiveness and come to be known by the relevant
`
`public as the single source of such services, long before Defendant commenced
`
`unauthorized use of the designation ANN ARBOR CENTER FOR PLASTIC
`
`SURGERY.
`
`DEFENDANT’S WRONGFUL CONDUCT
`
`16. On April 15, 2022, Defendant changed its name with the Michigan
`
`Department for Licensing and Regulatory Affairs, as shown at Exhibit 3. Prior to
`
`this date, Defendant had used the name Center for Plastic & Reconstructive Surgery,
`
`PC to identify its plastic surgery business since 1998. Defendant also previously
`
`used and registered the domain name www.cprs-aa.com. In approximately March
`
`6
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.7 Filed 06/06/22 Page 7 of 23
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`2022, Defendant registered the company name Ann Arbor Center For Plastic
`
`Surgery, P.C. and began using the mark ANN ARBOR CENTER FOR PLASTIC
`
`SURGERY to identify its plastic surgery services (“Defendant’s Services”) and
`
`began using the domain name www.aaplasticsurgery.com to promote its business.
`
`Defendant’s Services are identical to and/or overlap with The Malhotra Center
`
`Services.
`
`17. Below is one example of a side-by-side comparison of The Malhotra
`
`Center’s use of the ANN ARBOR PLASTIC SURGERY Mark and an example of
`
`Defendant’s unauthorized use of the confusingly similar wording ANN ARBOR
`
`CENTER FOR PLASTIC SURGERY, both obtained from the parties’ websites.
`
`7
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.8 Filed 06/06/22 Page 8 of 23
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`The Malhotra Center’s Use of ANN
`ARBOR PLASTIC SURGERY Mark
`
`Defendant’s Infringing Use of
`ANN ARBOR CENTER OF
`PLASTIC SURGERY Mark
`
`Defendant’s use of the mark ANN ARBOR CENTER FOR PLASTIC SURGERY
`
`is nearly identical to The Malhotra Center’s use of ANN ARBOR PLASTIC
`
`SURGERY. Further examples of Defendant’s unauthorized uses of the mark ANN
`
`ARBOR CENTER FOR PLASTIC SURGERY are attached as Exhibit 4.
`
`18. Defendant’s use of the confusingly similar mark in connection with
`
`identical services targeted at the identical consumers through the same trade
`
`channels as The Malhotra Center constitutes trademark infringement, unfair
`
`competition and unfair business practices and such use is likely to confuse, and has
`
`already confused, the relevant consuming public into believing the Defendant is
`
`affiliated with or related to The Malhotra Center.
`
`19. Upon information and belief, on or about March 16, 2022, Defendant
`
`registered the domain www.aaplasticsurgery.com, as indicated by the web domain
`
`registration data found at lookup.icann.org/lookup, which is attached as Exhibit 5.
`
`The “Our Surgeons” page for the website www.aaplasticsurgery.com shows the
`
`8
`
`

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`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.9 Filed 06/06/22 Page 9 of 23
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`surgeons Daniel Sherick, MD, FACS, and Richard Beil, MD, FACS, as indicated by
`
`Exhibit 6, who upon information and belief are each officers and directors of
`
`Defendant, as indicated by the business registry information on the Michigan
`
`Department of Licensing and Regulatory Affairs’ Corporations Online Filing
`
`System at Exhibit 3.
`
`20.
`
`In addition, on or about March 27, 2022, Defendant commenced using
`
`the social media username/social media link aaplasticsurgery on both Instagram and
`
`Facebook, as indicated by the evidence from Facebook at Exhibit 7. Although
`
`Defendant later ceased using these names in at least some instances, in response to
`
`a letter from Plaintiff seeking to avoid a dispute, as detailed below, Defendant still
`
`has some instances using the mark ANN ARBOR CENTER FOR PLASTIC
`
`SURGERY on Facebook,
`
`for example, and
`
`still uses
`
`the website
`
`www.aaplasticsurgery.com with ANN ARBOR CENTER FOR PLASTIC
`
`SURGERY at the top of the page, to promote its services. This use is still evidenced
`
`by the social media uses and links from their website, as indicated at Exhibit 8.
`
`21. Defendant at least had actual notice of The Malhotra Center’s
`
`trademark rights in the ANN ARBOR PLASTIC SURGERY Mark and
`
`www.annarborplasticsurgery.com at the time when Defendant registered the domain
`
`www.aaplasticsurgery.com and began to use ANN ARBOR CENTER FOR
`
`9
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.10 Filed 06/06/22 Page 10 of 23
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`PLASTIC SURGERY and the username/page link aaplasticsurgery on social media
`
`including Facebook and Instagram.
`
`22. Defendant’s aforementioned unlawful acts are intended to, and are
`
`likely to, cause confusion as to the source of Defendant’s services and, at the same
`
`time, harm the reputation of The Malhotra Center and interfere with The Malhotra
`
`Center’s Services and reputation.
`
`23. Defendant’s aforementioned unlawful acts have caused, and will
`
`continue to cause irreparable harm to Plaintiff and The Malhotra Center’s Mark, and
`
`to the business and substantial goodwill represented thereby, and Defendant’s
`
`unlawful acts will continue to damage Plaintiff unless restrained by this Court.
`
`24.
`
`Plaintiff is aware of several instances of actual confusion due to
`
`Defendant’s unauthorized use of mark ANN ARBOR CENTER FOR PLASTIC
`
`SURGERY. Plaintiff has received calls, appointments and patients intended for
`
`Defendant, and patients have reported that they confused Plaintiff and Defendant
`
`and arrived at the wrong business location, or called or made an appointment with
`
`the Defendant, when they intended to contact Plaintiff.
`
`25.
`
`Plaintiff has no adequate remedy at law.
`
`26. Defendant’s continued unlawful and unauthorized use of The Malhotra
`
`Center Marks is willful and intentional. Specifically, Defendant is on actual notice
`
`as of April 2022, when, prior to filing this lawsuit, Plaintiff contacted Defendant and
`
`10
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.11 Filed 06/06/22 Page 11 of 23
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`informed the owners of their unlawful activities related to infringement of the ANN
`
`ARBOR PLASTIC SURGERY Mark and the resulting actual instances of confusion
`
`caused by Defendant’s willfully infringing actions. The letter sent by Plaintiff to
`
`Defendant prior to the filing of this lawsuit is attached as Exhibit 9. At that time,
`
`Plaintiff requested that Defendant cease and desist from its unlawful use of any mark
`
`that is confusingly similar to the Plaintiff’s Mark, and any similar variations thereof,
`
`including ceasing use of the similar domain name www.aaplasticsurgery. In a May
`
`3, 2022 phone call, Plaintiff’s counsel was advised that Defendant was changing its
`
`mark ANN ARBOR CENTER FOR PLASTIC SURGERY to the mark CENTER
`
`FOR PLASTIC SURGERY ANN ARBOR (“New name”). The New Name still
`
`incorporates the dominant elements of Plaintiff’s Mark, is picked up by online
`
`searches for Plaintiff’s Mark, as illustrated by Exhibit 10, and is not sufficient to
`
`avoid the likelihood of confusion with Plaintiff’s Mark or the ongoing instances of
`
`consumer confusion.
`
`27.
`
`To raise the concerns about the New Name and other continued uses of
`
`variants of the Defendant’s Mark and to avoid this lawsuit, Plaintiff sent a
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`subsequent letter on May 17, 2022, attached as Exhibit 11. Despite this letter,
`
`Defendant has continued its unlawful activities, and is currently infringing The
`
`Malhotra Center Mark in its continued use of ANN ARBOR CENTER FOR
`
`PLASTIC SURGERY on its website and the shortened version of Plaintiff’s mark
`
`11
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.12 Filed 06/06/22 Page 12 of 23
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`in its website URL www.aasurgery.com, and its new use of CENTER FOR
`
`PLASTIC SURGERY ANN ARBOR and the username/social media link
`
`plasticsurgeryaa on its Facebook and Instagram Pages, among other social media
`
`posts that still suggest a connection with Plaintiff or use variants of Plaintiff’s Mark.
`
`CAUSES OF ACTION
`
`COUNT 1 – FEDERAL COMMON LAW TRADEMARK INFRINGEMENT
`
`28.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein.
`
`29. Defendant has used, and is currently using, the confusingly similar
`
`infringing marks in commerce in connection with the sale, offering for sale,
`
`distribution or advertising of services that are identical to and/or overlap with The
`
`Malhotra Center Services. Defendant’s use of the infringing marks is without the
`
`consent of Plaintiff.
`
`30. Defendant’s use of the infringing marks is likely to cause, and has
`
`caused, confusion, mistake, or deception as to:
`
`a.
`
`Defendant’s affiliation, connection, or association with The
`
`Malhotra Center’s business; and/or
`
`b.
`
`the origin, sponsorship, or approval of Defendant’s products,
`
`services, or commercial activities by Plaintiff.
`
`12
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.13 Filed 06/06/22 Page 13 of 23
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`31.
`
`Plaintiff has been damaged by Defendant’s use of the infringing marks
`
`and is likely to be further damaged by Defendant’s continued use of the infringing
`
`marks. In particular, Defendant’s use of the infringing marks is likely to cause The
`
`Malhotra Center Mark to lose their significance as indicators of origin.
`
`32. Upon information and belief, Defendant adopted and first used
`
`colorable imitations of, and designations substantially identical to The Malhotra
`
`Center Mark with full knowledge and/or constructive knowledge of Plaintiff’s
`
`rights. Therefore, Defendant has willfully infringed such rights.
`
`33. Upon information and belief, Defendant has made and will continue to
`
`make substantial profits and/or gains to which it are not entitled to in law or equity.
`
`34. Upon information and belief, Defendant intends to continue its
`
`infringing acts, unless restrained by this Court.
`
`35. Defendant’s acts have damaged and will continue to damage Plaintiff,
`
`and Plaintiff has no adequate remedy at law.
`
`36. As a direct and proximate result of Defendant’s wrongful conduct,
`
`Plaintiff is entitled to damages in an amount to be proven at trial.
`
`COUNT 2 - VIOLATION OF THE ANTI-CYBERSQUATTING
`CONSUMER PROTECTION ACT
`
`37.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein.
`
`13
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.14 Filed 06/06/22 Page 14 of 23
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`38. As a cause of action and ground for relief, Plaintiff alleges a violation
`
`of the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)(1)(A).
`
`39. Defendant has registered and used the internet domain name,
`
`“www.aaplasticsurgery.com”, which is confusingly similar to the ANN ARBOR
`
`PLASTIC SURGERY mark owned by Plaintiff .
`
`40. Defendant
`
`has
`
`registered
`
`and
`
`has
`
`used
`
`the
`
`domain
`
`“www.aaplasticsurgery.com” without The Malhotra Center’s authorization and with
`
`a bad faith intent to profit from the ANN ARBOR PLASTIC SURGERY Mark, in
`
`violation of 15 U.S.C. § 1125(d).
`
`41.
`
`The ANN ARBOR PLASTIC SURGERY Mark was distinctive at the
`
`time Defendant registered “www.aaplasticsurgery.com” and the ANN ARBOR
`
`PLASTIC SURGERY mark remains so today.
`
`42.
`
`The
`
`infringing domain name “www.aaplasticsurgery.com” was
`
`confusingly similar to the ANN ARBOR PLASTIC SURGERY Mark at the time
`
`Defendant registered the domain and throughout the duration of the use/registration
`
`of the website, which, upon information and belief, is currently in operation.
`
`43.
`
`The infringing domain name “www.aaplasticsurgery.com” did not
`
`direct or redirect to a web site owned by The Malhotra Center, but rather directed or
`
`redirected to a website controlled by Defendant, which profited from its use and
`
`14
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`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.15 Filed 06/06/22 Page 15 of 23
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`registration. The domain name continues to direct or redirect to a website controlled
`
`by Defendant.
`
`44. Defendant at least had actual notice of the ANN ARBOR PLASTIC
`
`SURGERY Mark when Defendant
`
`registered
`
`the
`
`domain
`
`name
`
`“www.aaplasticsurgery.com”.
`
`45. Defendant did not believe and could not reasonably have believed its
`
`use of “www.aaplasticsurgery.com” constituted fair use or was otherwise lawful.
`
`46. Defendant’s use of the ANN ARBOR PLASTIC SURGERY mark in
`
`the manner hereinabove alleged violates The Malhotra Center’s trademark rights
`
`under
`
`the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C.
`
`§ 1125(d)(1)(A).
`
`47. As a result of Defendant’s violations, Plaintiff has suffered damages,
`
`including attorneys’ fees and costs.
`
`COUNT 3 - FALSE DESIGNATION OF ORIGIN/ FALSE ADVERTISING
`
`48.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein.
`
`49. Defendant’s promotion, advertising, distribution, importation, sale,
`
`and/or offering for sale of products and services using marks that infringe the
`
`Plaintiff’s Mark, together with Defendant’s use of other indicia associated with
`
`15
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`

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`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.16 Filed 06/06/22 Page 16 of 23
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`Plaintiff, is intended to, and is likely to, confuse, mislead, or deceive consumers, the
`
`public, and the trade as to the origin, source, sponsorship, or affiliation of
`
`Defendant’s infringing products and/or services, and is intended, and is likely to
`
`cause such parties to believe in error that the infringing products and/or services
`
`have been authorized, sponsored, approved, endorsed or licensed by Plaintiff, or that
`
`Defendant is in some way affiliated with Plaintiff.
`
`50.
`
`The acts of Defendant complained of herein constitute the use of false
`
`designations of origin in commerce, and false and misleading descriptions and
`
`representations of fact, all in violation of Section 43(a) of the Lanham Act of 1946,
`
`as amended (15 U.S.C. § 1125(a)).
`
`51. Upon information and belief, Defendant has made and will continue to
`
`make substantial profits and/or gains that they are not entitled to in law or equity.
`
`52. Upon information and belief, Defendant intends to continue their
`
`infringing acts, unless restrained by this Court.
`
`53. Defendant’s acts have damaged and will continue to damage Plaintiff,
`
`and Plaintiff has no adequate remedy at law.
`
`54. As a direct and proximate result of Defendant’s wrongful conduct,
`
`Plaintiff is entitled to damages in an amount to be proven at trial and/or recovery of
`
`reasonable attorneys’ fees and costs incurred herein.
`
`16
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`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.17 Filed 06/06/22 Page 17 of 23
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`COUNT 4 - UNFAIR COMPETITION UNDER THE LANHAM ACT
`
`55.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein
`
`56. Defendant’s activities as described above constitute unfair competition
`
`in violation of Section 43(a) of the Lanham Act of 1946, as amended (15 U.S.C.
`
`§ 1125(a)).
`
`57. Upon information and belief, Defendant has made and will continue to
`
`make substantial profits and gains that it is not entitled to in law or equity.
`
`58. Upon information and belief, Defendant intends to continue its
`
`infringing acts, unless restrained by this Court.
`
`59. Defendant’s acts have damaged and will continue to damage Plaintiff,
`
`and Plaintiff has no adequate remedy at law.
`
`COUNT 5 - VIOLATION OF THE MICHIGAN CONSUMER
`PROTECTION ACT, M.C.L. § 445.901 ET SEQ.
`
`60.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein.
`
`61. Defendant’s activities as described above constitute unfair,
`
`unconscionable, or deceptive methods, acts, or practices in the conduct of trade or
`
`commerce under the Michigan Consumer Protection Act, M.C.L. § 445.901 et seq.
`17
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`

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`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.18 Filed 06/06/22 Page 18 of 23
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`62. Upon information and belief, Defendant has made and will continue to
`
`make substantial profits and gains that it is not entitled to in law or equity.
`
`63. Upon information and belief, Defendant intends to continue its
`
`unlawful acts, unless restrained by this Court.
`
`64. Defendant’s acts have damaged and will continue to damage Plaintiff,
`
`and Plaintiff has no adequate remedy at law.
`
`COUNT 6 - COMMON LAW UNFAIR COMPETITION
`
`65.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein.
`
`66.
`
`Plaintiff and Defendant are competitors, and Defendant offers services
`
`that overlap with The Malhotra Center Services.
`
`67. Defendant’s actions as set forth herein are designed to unfairly compete
`
`with Plaintiff and constitute unfair competition under the common law of the State
`
`of Michigan.
`
`68.
`
`Plaintiff has suffered irreparable harm and monetary damages as the
`
`direct and proximate result of Defendant’s actions.
`
`18
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.19 Filed 06/06/22 Page 19 of 23
`
`COUNT 7 - COMMON LAW UNJUST ENRICHMENT
`
`69.
`
`Plaintiff re-alleges and incorporates by reference each and every
`
`allegation contained in the preceding paragraphs of this Complaint as if fully set
`
`forth herein.
`
`70. Benefits have been conferred upon Defendant by Defendant’s
`
`unauthorized use of the Plaintiff’s Mark.
`
`71. Defendant has appreciated, accepted, and retained these benefits.
`
`72.
`
`It is inequitable for Defendant to retain these benefits without the
`
`payment of value to Plaintiff.
`
`73. Defendant has been unjustly enriched at the expense of Plaintiff.
`
`74. Defendant’s activities as described above constitute unjust enrichment
`
`under the common law of the State of Michigan.
`
`REQUESTED RELIEF
`
`WHEREFORE, Plaintiff prays that this Court enter judgment in its favor and
`
`against Defendant finding as follows:
`
`A.
`
`That Plaintiff’s rights in and to the ANN ARBOR PLASTIC
`
`SURGERY Mark is valid, enforceable and have been infringed by
`
`Defendant;
`
`B.
`
`That Defendant has violated various federal and state trademark laws
`
`including at least (i) Section 43(a) of the Lanham Act (15 U. S. C.
`
`19
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.20 Filed 06/06/22 Page 20 of 23
`
`§ 1125(a)), and Section 43(c) of the Lanham Act (15 U. S. C.
`
`§ 1125(c)); and (ii) has engaged in trademark infringement and unfair
`
`competition in violation of the common law of the State of Michigan;
`
`C.
`
`D.
`
`That Defendant has willfully infringed the Plaintiff’s Mark;
`
`That Defendant, its agents, servants, employees and all persons in
`
`active concert or participation with it, be preliminarily and permanently
`
`enjoined and restrained from:
`
`i.
`
` using Plaintiff’s Mark or colorable imitations thereof and other
`
`designs, designations and indicia which are likely to cause
`
`confusion, mistake or deception with respect to Plaintiff’s rights;
`
`and
`
`ii. otherwise infringing Plaintiff’s rights in the ANN ARBOR
`
`PLASTIC SURGERY Mark and competing unfairly with
`
`Plaintiff;
`
`E.
`
`That Defendant be required to pay to Plaintiff such damages, statutory
`
`or otherwise, together with prejudgment and post-judgment interest
`
`thereon, as Plaintiff has sustained in consequence of Defendant’s
`
`unlawful acts, and to account for and return to Plaintiff any monies,
`
`profits, and advantages gained by Defendant;
`
`20
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.21 Filed 06/06/22 Page 21 of 23
`
`F.
`
`That Defendant pay to Plaintiff the costs and disbursements of this
`
`action, including prejudgment and post-judgment interest thereon, and
`
`that reasonable attorney’s fees be awarded to Plaintiff;
`
`G.
`
`That all damages sustained by Plaintiff be trebled and/or enhanced, as
`
`appropriate;
`
`H.
`
`That Defendant be required to pay to Plaintiff any and all other damages
`
`available under the law;
`
`I.
`
`That pursuant to § 35 of the Federal Trademark Act, 15 U.S.C.
`
`§ 1117(d), Plaintiff be awarded statutory damages in an amount not
`
`less than $1,000 and not more than $100,000 for Defendant’s use of the
`
`domain name in violation of the Anti- Cybersquatting Consumer
`
`Protection Act, and that any domain names incorporating the ANN
`
`ARBOR PLASTIC SURGERY Mark, or close variants thereof, be
`
`transferred to Plaintiff;
`
`J.
`
`That, pursuant to Section 36 of the Lanham Act, 15 U.S.C. § 1118,
`
`Defendant deliver up for impoundment during the pendency of this
`
`action, and for destruction upon entry of judgment, all infringing
`
`articles (including, without limitation, all labels, advertisements,
`
`promotional materials, and brochures) within its possession, custody,
`
`or control, either directly or indirectly, that bears the Plaintiff’s Mark
`
`21
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.22 Filed 06/06/22 Page 22 of 23
`
`or any other designation, symbol, or device that is confusingly similar
`
`to the Plaintiff’s Mark and immediately discontinue use of the
`
`infringing imitations;
`
`K.
`
`A determination that Plaintiff has suffered a loss due to Defendant’s
`
`unfair, unconscionable, or deceptive methods, acts, or practices in the
`
`conduct of trade or commerce, and that, pursuant to M.C.L. § 445.911,
`
`Plaintiff
`
`is entitled reasonable attorneys’ fees
`
`incurred from
`
`undertaking this action as well as punitive damages from Defendant;
`
`L.
`
`That Defendant be directed to file with this Court, and serve on Plaintiff
`
`within thirty (30) days after the service of any temporary restraining
`
`order, and/or preliminary or permanent injunction a written report
`
`under oath setting forth in detail the manner and form in which
`
`Defendant has complied with the injunction; and
`
`M.
`
`That Plaintiff be granted such other and further relief as this Court may
`
`deem appropriate.
`
`22
`
`

`

`Case 2:22-cv-11236-GCS-KGA ECF No. 1, PageID.23 Filed 06/06/22 Page 23 of 23
`
`Dated: June 6, 2022
`
`121720.000002
`4867-2330-4484.1
`
`Respectfully submitted,
`
`DYKEMA GOSSETT PLLC
`
`
`
`By: s/Jennifer Fraser
`Jennifer Fraser
`1100 K St., NW
`Washington, DC 20005
`202-906-8712
`jfraser@dykema.com
`
`Andrew J. Kolozsvary (P68885)
`400 Renaissance Center
`Detroit, Michigan 48243
`313-568-6800
`akolozsvary@dykema.com
`
`Attorneys for Plaintiff
`
`23
`
`

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