`
`UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF MICHIGAN
`
`
`
`EDGE SYSTEMS LLC, dba THE
`HYDRAFACIAL COMPANY
`
`
`Plaintiff,
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`
`
`
`
`v.
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`
`
`
`
`
`MICHIGAN BODY CONTOURS
`& COSMETICS, LLC, dba MI BODY
`CONTOURS & COSMETICS
`
`
`
`
`
`Defendant.
`_________________________________/
`
`
`
`
`Case No.
`Hon.
`
`
`
`
`
`COMPLAINT FOR TRADEMARK INFRINGEMENT AND
`UNFAIR COMPETITION (INJUNCTIVE RELIEF SOUGHT)
`
`Plaintiff Edge Systems LLC, dba The HydraFacial Company
`
`(“HydraFacial”), for its complaint against Defendant Michigan Body Contours &
`
`Cosmetics, LLC, dba MI Body Contours & Cosmetics (“MI Body Contours”),
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`hereby alleges as follows:
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`JURISDICTION AND VENUE
`
`1.
`
`HydraFacial’s claims arise under the Trademark Act of 1946 (the
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`Lanham Act), as amended by the Trademark Dilution Revision Act of 2006
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`(15 U.S.C. §§ 1051, et seq.). This Court has jurisdiction over such claims pursuant
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`
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.2 Filed 08/15/22 Page 2 of 17
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`to 28 U.S.C. §§ 1338 (a) and 1338 (b) (trademark and unfair competition),
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`28 U.S.C. § 1331 (federal question) and 15 U.S.C. § 1121 (Lanham Act). This
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`Court has supplemental jurisdiction over the remaining state law claims under 28
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`U.S.C. § 1367.
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`2.
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`HydraFacial is informed and believes that venue is proper in this
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`Court under 28 U.S.C. § 1391(b) because MI Body Contours transacts affairs in
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`this district and because a substantial part of the events giving rise to the claims
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`asserted arose in this district.
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`PARTIES
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`3.
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`HydraFacial is a California Limited Liability Company with its
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`principal place of business at 2165 E. Spring Street, Long Beach, CA 90806.
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`Operating since approximately 1997, HydraFacial is one of the companies most
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`recognized and best known in the world for “hydrodermabrasion” products and
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`services. HydraFacial researches, develops, manufactures, markets, licenses, and
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`sells a variety of hydrodermabrasion methods, equipment, services, and products,
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`including its well-known HYDRAFACIAL® branded products and services, as
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`well as other skincare methods, services, and products.
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`2
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.3 Filed 08/15/22 Page 3 of 17
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`4.
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`HydraFacial is informed and believes that defendant, MI Body
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`Contours, is a Michigan LLC headquartered at 17000 Executive Drive Plaza, Suite
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`204, Dearborn MI 48126, having as its resident agent Nouhad Bazzi.
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`5.
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`On information and belief, MI Body Contours offers and performs
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`cosmetic surgery and non-invasive cosmetic and aesthetician services and
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`products, including facials and facial treatments, in Dearborn, Michigan, in this
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`judicial district. MI Body Contours is responsible for the wrongful conduct alleged
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`in this Complaint.
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`FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS
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`HydraFacial’s “HydraFacial” Trademark
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`6.
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`HydraFacial distinguishes and identifies its hydrodermabrasion
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`equipment and services, and related products, with its HYDRAFACIAL Marks. It
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`does business under its “The HydraFacial Company” and “HydraFacial”
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`tradenames. For many years prior to the events giving rise to this Complaint and
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`continuing into the present, HydraFacial spent great amounts of time, money, and
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`effort advertising and promoting its products and services under its
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`HYDRAFACIAL Marks. HydraFacial’s hydrodermabrasion equipment and
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`related serums are offered and sold on a massive scale all over the world, including
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`throughout the United States and in Michigan, all under HydraFacial’s
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`3
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.4 Filed 08/15/22 Page 4 of 17
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`HYDRAFACIAL Marks. Through its investments and sales volumes, HydraFacial
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`has created considerable goodwill and a reputation for high-quality products,
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`methods, and technology. For long over a decade, HydraFacial continuously has
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`used its HYDRAFACIAL Marks to distinguish its hydrodermabrasion products
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`and services.
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`7.
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`HydraFacial owns patented technologies, methods, and machines for
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`“controlled removal of epidermal layers” and “methods for treating the skin using
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`vacuum,” which are shown in United States Patent Nos. 6641591, 7678120,
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`7789886, 8066716, 8337513, and 9468464, among others. HydraFacial licenses its
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`HYDRAFACIAL Marks to aestheticians who purchase HydraFacial’s patented
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`equipment and use it properly with HydraFacial’s related products and serums.
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`HydraFacial strictly controls the use by licensees of its HYDRAFACIAL
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`trademark and requires that its licensees meet and maintain its high standards for
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`the quality of services, methods, products, and practices, among other
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`requirements.
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`8. Many of HydraFacial’s trademarks are federally registered; all are in
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`full force and effect, valid and protectable, and exclusively owned by HydraFacial.
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`HydraFacial continuously has used each of its trademarks, from the registration
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`4
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.5 Filed 08/15/22 Page 5 of 17
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`date or earlier, until the present and during all time periods relevant to
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`HydraFacial’s claims.
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`9.
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`HydraFacial owns, among others, the following United States
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`Registrations for its trademarks, attached as Exhibit A the “Hydrafacial
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`Registrations”). Some of these registrations have become incontestable under the
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`provisions of 15 U.S.C. § 1065.
`
`a.
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`Registration No. 4,317,059 for HYDRAFACIAL (first use
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`August 12, 2005; Sections 8 and 15 accepted and acknowledged June 27,
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`2018);
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`b.
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`Registration No. 4,738,970 for HYDRAFACIAL (first use
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`May 17, 2005; Sections 8 and 15 accepted and acknowledged August 14,
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`2020);
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`c.
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`Registration No. 3,341,027 for HYDRAFACIAL MD (first use
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`February 15, 2005; registered May 19, 2015);
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`d.
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`Registration No. 4,738,971 for HYDRAFACIAL MD (first use
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`May 17, 2005; registered May 19, 2015);
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`e.
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`Registration No. 5,012,576 for HYDRAFACIAL MD CTGF
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`(first use February 6, 2005; registered August 2, 2016);
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`5
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.6 Filed 08/15/22 Page 6 of 17
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`f.
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`Registration No. 6,080,194 for HYDRAFACIAL KERAVIVE
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`(first use January 6, 2020; registered June 16, 2020);
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`g.
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`Registration No. 6,030,752 for HYDRAFACIAL KERAVIVE
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`(first use January 6, 2020; registered April 7, 2020);
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`h.
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`Registration No. 3,500,086 for HYDROPEEL (first use
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`May 17, 2005; Sections 8 and 15 accepted and acknowledged on
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`September 2, 2014, and renewed August 7, 2018);
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`10. Examples of HydraFacial’s use of its HYDRAFACIAL Marks are
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`attached as Exhibit B.
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`These marks of the Hydrafacial Registrations and HydraFacial’s common law
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`trademarks are collectively referred to as “HYDRAFACIAL Marks.”
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`HydraFacial’s Licensees also use HydraFacial’s HYDRAFACIAL Marks to
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`promote authentic HYDRAFACIAL services in competition with MI Body
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`Contours.
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`MI Body Contours’ Infringement of HydraFacial’s HYDRAFACIAL Marks
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`11. MI Body Contours is not a licensee of HydraFacial’s intellectual
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`property, including of any of HydraFacial’s HYDRAFACIAL Marks or patents.
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`12. Yet, beginning at some time in the past and continuing until the
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`present, MI Body Contours has, without HydraFacial’s permission, promoted and
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`6
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.7 Filed 08/15/22 Page 7 of 17
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`sold services under designations that infringe HydraFacial’s HYDRAFACIAL
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`Marks.
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`13.
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`In competition with HydraFacial’s authorized licensees, MI Body
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`Contours offers hydrodermabrasion services and related products under the names
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`“Hydrafacial” and Hydra Facial” (collectively “MI Body Contours Hydrafacial
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`Designations”). The following is a screen shot from MI Body Contours’ website:
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`
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`MI Body Contours’ services under the MI Body Contours Hydrafacial
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`Designations are highly similar to services provided under HydraFacial’s
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`HYDRAFACIAL Marks and are likely to confuse consumers about (1) the source
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`7
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.8 Filed 08/15/22 Page 8 of 17
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`of MI Body Contours’ services and products and/or (2) about a relationship
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`between MI Body Contours and HydraFacial.
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`14. MI Body Contours has continued to use the MI Body Contours
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`Hydrafacial Designations after receiving HydraFacial’s repeated demands that it
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`cease and desist. There is no question, therefore, that MI Body Contours has acted
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`deliberately and with intent to misappropriate HydraFacial’s goodwill and
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`reputation, and to cause great damage to HydraFacial’s HYDRAFACIAL Marks.
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`Examples of MI Body Contours’ use of the MI Body Contours Hydrafacial
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`Designations are attached to this Complaint as Exhibit C.
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`15. HydraFacial is informed and believes that MI Body Contours has
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`provided a large quantity of facial services under the MI Body Contours
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`Hydrafacial Designations and has obtained and continues to obtain substantial
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`profits from such sales.
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`16. MI Body Contours’ actions have caused and will continue to cause
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`HydraFacial substantial damages and also irreparable harm for which money
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`damages and other remedies are inadequate. Unless MI Body Contours is
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`restrained by this Court, it will continue and/or expand its illegal activities and
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`otherwise continue to cause great and irreparable damage and injury to
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`HydraFacial by, among other things:
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`8
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.9 Filed 08/15/22 Page 9 of 17
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`a.
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`Depriving HydraFacial of its statutory rights to use and control
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`use of its trademarks;
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`b.
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`Creating a likelihood of confusion, mistake, and deception
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`among consumers and the trade as to the source of the infringing services
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`and products;
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`c.
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`Causing the public falsely to associate HydraFacial with MI
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`Body Contours and/or its products, or services, or vice versa;
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`d.
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`Causing incalculable and irreparable damage to HydraFacial’s
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`goodwill and relationships with its licensees, and eroding the capacity of its
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`HYDRAFACIAL Marks to differentiate HydraFacial’s methods, products,
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`and services from others;
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`e.
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`Causing irreparable damage to the public who unwittingly
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`undergo potentially damaging facial treatments with an unlicensed,
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`untrained and rogue entity;
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`f.
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`Causing HydraFacial and its licensees to lose revenue; and
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`g.
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`Causing HydraFacial to lose sales of its genuine products and
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`services.
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`9
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.10 Filed 08/15/22 Page 10 of 17
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`17. Accordingly, in addition to other relief sought, HydraFacial is entitled
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`to injunctive relief against MI Body Contours, its professional service providers,
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`owners and successors, and all persons acting in concert with it.
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`FIRST CLAIM
`FEDERAL TRADEMARK INFRINGEMENT
`(15 U.S.C. §§ 1114-1117; Lanham Act § 32)
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`18. HydraFacial realleges and incorporates by reference each of the
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`allegations contained in paragraphs 1 through 17 of this Complaint.
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`19. Without HydraFacial’s consent, MI Body Contours has used the MI
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`Body Contours Hydrafacial Designations in connection with selling, offering for
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`sale, advertising, and provision of its services. These uses infringe HydraFacial’s
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`registered trademarks and its HYDRAFACIAL Marks.
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`20. MI Body Contours committed these acts of trademark infringement
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`with the intent to cause confusion, mistake, or deception, to cause harm to
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`HydraFacial and consumers, and has violated 15 U.S.C. § 1114.
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`21. As a direct and proximate result of MI Body Contours infringing
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`activities, HydraFacial is entitled to recover MI Body Contours’ unlawful profits
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`and HydraFacial’s substantial damages under 15 U.S.C. 1117(a).
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`22. MI Body Contours’ infringement of HydraFacial’s HYDRAFACIAL
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`Marks is an exceptional case and intentional, thereby entitling HydraFacial to
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`10
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.11 Filed 08/15/22 Page 11 of 17
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`treble the amount of its damages and MI Body Contours’ profits, and to an award
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`of attorneys’ fees under 15 U.S.C. §§ 1117(a).
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`23. As a result of the irreparable and ongoing damage to HydraFacial and
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`to the public caused by MI Body Contours, HydraFacial is entitled to injunctive
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`relief pursuant to 15 U.S.C. 1116(a).
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`SECOND CLAIM
`FEDERAL UNFAIR COMPETITION
`(False Designation of Origin and False Description)
`(15 U.S.C. § 1125(a); Lanham Act § 43(a))
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`
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`24. HydraFacial realleges and incorporates by reference each of the
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`allegations contained in paragraphs 1 through 23 of this Complaint.
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`25. MI Body Contours’ uses of the Hydrafacial Designations tend falsely
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`to describe its products and services within the meaning of 15 U.S.C. § 1125(a)(1).
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`MI Body Contours’ conduct is likely to cause confusion, mistake, or deception by
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`or in the public as to the affiliation, connection, association, origin, sponsorship, or
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`approval of MI Body Contours’ products and services to the detriment of
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`HydraFacial and consumers and in violation of 15 U.S.C. § 1125(a)(1).
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`26. As a direct and proximate result of MI Body Contours’ infringing
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`activities, HydraFacial is entitled to recover MI Body Contours’ unlawful profits
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`and HydraFacial’s substantial damages under 15 U.S.C. § 1117(a).
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`11
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.12 Filed 08/15/22 Page 12 of 17
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`27. MI Body Contours’ infringement of HydraFacial’s HYDRAFACIAL
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`Marks is an exceptional case and was intentional, thereby entitling HydraFacial to
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`treble the amount of its damages and profits and to an award of attorneys’ fees
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`under 15 U.S.C. § 1117(a).
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`28. As a result of the irreparable and ongoing damage to HydraFacial and
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`to the public caused by MI Body Contours, HydraFacial is entitled to injunctive
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`relief pursuant to 15 U.S.C. § 1116(a).
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`THIRD CLAIM
`MICHIGAN CONSUMER PROTECTION ACT
`(MCL §445.901 et seq)
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`29. HydraFacial realleges and incorporates by reference each of the
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`allegations contained in paragraphs 1 through 28 of this Complaint.
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`30. MI Body Contours’ conduct causes a probability of confusion or
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`misunderstanding as to the source, sponsorship, approval, or certification of its
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`goods or services. MI Body Contours also represents to the public that its services
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`have been sponsored or approved by HydraFacial and are provided with serums
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`and equipment by professionals authorized by HydraFacial to perform genuine
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`HYDRAFACIAL services.
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`31. Due to MI Body Contours’ actions in violation of the Michigan
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`Consumer Protection law, and as a result of the irreparable and ongoing damage to
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`12
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.13 Filed 08/15/22 Page 13 of 17
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`HydraFacial and to the public caused by MI Body Contours, HydraFacial is
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`entitled to a declaratory judgment that MI Body Contours’ actions are unlawful,
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`that it should be enjoined from performing the acts alleged in this Complaint, and
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`that Plaintiff is entitled to the greater of its actual damages or $250 and its
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`attorneys’ fees.
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`PRAYER FOR JUDGMENT
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`WHEREFORE, HydraFacial prays that this Court grant it the following
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`relief:
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`1.
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`Adjudge that HydraFacial’s HYDRAFACIAL Marks have been
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`infringed by MI Body Contours in violation of HydraFacial’s rights under 15
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`U.S.C. § 1114;
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`2.
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`Adjudge that MI Body Contours has competed unfairly with
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`HydraFacial in violation of HydraFacial’s rights under 15 U.S.C. § 1125(a);
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`3.
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`Adjudge that MI Body Contours has violated the Michigan Consumer
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`Protection Act;
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`4.
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`Adjudge that MI Body Contours and its agents, employees, attorneys,
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`successors, assigns, affiliates, and joint venturers and any person(s) in active
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`concert or participation with it, and/or any person(s) acting for, with, by, through
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`13
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.14 Filed 08/15/22 Page 14 of 17
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`or under it, be enjoined and restrained at first during the pendency of this action
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`and thereafter permanently from:
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`a. Manufacturing, producing, sourcing, importing, exporting,
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`selling, buying, offering for sale, distributing, licensing, advertising, or
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`promoting any goods or services, using any words, symbols or designs that
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`so resemble HydraFacial’s HYDRAFACIAL Marks as to be likely to cause
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`confusion, mistake or deception, on or in connection with any product that is
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`not authorized by or for HydraFacial, including without limitation the MI
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`Body Contours Hydrafacial Designations, or any other approximation of
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`HydraFacial’s HYDRAFACIAL Marks;
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`b.
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`Using any word, term, name, symbol, device, or combination
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`thereof, including without limitation, the MI Body Contours Hydrafacial
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`Designations, that causes or is likely to cause confusion, mistake, or
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`deception as to the affiliation or association of MI Body Contours or its
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`goods and services with HydraFacial or as to the origin of MI Body
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`Contours’ goods or the products and methods used in MI Body Contours’
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`services, or any false designation of origin, false or misleading description or
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`representation of fact, or any false or misleading advertising;
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`14
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.15 Filed 08/15/22 Page 15 of 17
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`c.
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`Claiming trademark rights in any of the MI Body Contours
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`Hydrafacial Designations, or any other word, symbol, or design that is
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`confusingly similar to the HYDRAFACIAL Marks, including by applying
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`now or in the future for federal or state registration of trademarks
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`comprising the MI Body Contours Hydrafacial Designations, or any other
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`word, symbol, or design that is similar to the HYDRAFACIAL Marks;
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`d.
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`Further infringing the rights of HydraFacial in and to any of its
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`trademarks in its HYDRAFACIAL brand methods, products, and services,
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`or otherwise damaging HydraFacial’s goodwill or business reputation;
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`e.
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`Otherwise competing unfairly with HydraFacial in any manner;
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`and
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`f.
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`Continuing to perform in any manner whatsoever any of the
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`other acts complained of in this Complaint;
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`5.
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`Adjudge that MI Body Contours, within thirty (30) days after service
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`of the judgment demanded herein, be required to file with this Court and serve
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`upon HydraFacial’s counsel a written report under oath setting forth in detail the
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`manner in which it has complied with the judgment;
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`15
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.16 Filed 08/15/22 Page 16 of 17
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`6.
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`Adjudge that HydraFacial recover from MI Body Contours its
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`damages and lost profits, and MI Body Contours’ profits, in an amount to be
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`proven at trial, as well as damages available under Michigan law;
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`7.
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`Adjudge that MI Body Contours be required to account for any profits
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`that are attributable to its illegal acts, and that HydraFacial be awarded (1) MI
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`Body Contours’ profits and (2) all damages sustained by HydraFacial, under 15
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`U.S.C. § 1117, plus prejudgment interest;
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`8.
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`Adjudge that the amounts awarded to HydraFacial pursuant to 15
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`U.S.C. § 1117 shall be trebled;
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`9.
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`Order an accounting of and impose a constructive trust on all of MI
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`Body Contours’ funds and assets that arise out of its infringing activities;
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`10. Adjudge that HydraFacial be awarded its costs and disbursements
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`incurred in connection with this action, including HydraFacial’s reasonable
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`attorneys’ fees and investigative expenses; and
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`11. Adjudge that all such other relief be awarded to HydraFacial as this
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`Court deems just and proper.
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`Case 2:22-cv-11900-BAF-KGA ECF No. 1, PageID.17 Filed 08/15/22 Page 17 of 17
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`DEMAND FOR JURY TRIAL
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`HydraFacial hereby demands that this action be tried to a jury.
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`Dated: August 15, 2022
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`Respectfully submitted,
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`FISHMAN STEWART PLLC
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`By:
`Barbara L. Mandell (P36437)
`Julie A. Greenberg (P38299)
`800 Tower Drive, Suite 610
`Troy, Michigan 48098
`Phone: (248) 593-3331
`Fax: (248) 594-0610
`bmandell@fishstewip.com
`jgreenberg@fishstewip.com
`Attorneys for Plaintiff
`
`OF COUNSEL FOR PLAINTIFF:
`
`VERSO LAW GROUP LLP
`GREGORY S. GILCHRIST
`(Cal. State Bar No. 111536)
`PAYMANEH PARHAMI
`(Cal. State Bar No. 335604)
`209 Kearny St., Suite 300
`San Francisco, California 94108
`Telephone: (415) 576-0200
`Facsimile:
`(415) 576-0300
`ggilchrist@kilpatricktownsend.com
`bstrnad@kilpatricktownsend.com
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`17
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