Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 1 of 25 PageID: 1
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`-------------------------------------------------------x
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`PREFERRED PHARMACY PLUS LLC,
`
`Plaintiff,
`
`v.
`CONVATEC INC. and BILRAY SEWELL,
`
`Defendants.
`-------------------------------------------------------x
`
`Civil Action No. 22-cv-3619
`
`COMPLAINT AND JURY
`TRIAL DEMAND
`
`Electronically Filed
`
`:::::::::::::
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`Plaintiff Preferred Pharmacy Plus LLC (“Plaintiff”), by and through its
`
`counsel, for its Complaint against Convatec Inc. (“Convatec”) and Bilray Sewell
`
`(“Sewell”) (collectively, “Defendants”), alleges as follows:
`
`PARTIES
`Plaintiff is a company organized and existing under the laws of the
`
`1.
`
`State of Delaware, with a place of business at 33 Corporate Drive Orangeburg, NY
`
`10962.
`
`2.
`
`On information and belief, Defendant Convatec is a Delaware
`
`corporation and maintains a place of business at 200 Crossing Boulevard, Suite
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`101, Bridgewater, NJ 08807.
`
`3.
`
`On information and belief, Defendant Sewell is an individual
`
`employed by Defendant Convatec and resides in the State of North Carolina.
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`{Client/087125/17/02314875.DOCX;2 }
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`-1-
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`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`-------------------------------------------------------x
`
`PREFERRED PHARMACY PLUS LLC,
`
`Plaintiff,
`
`v.
`CONVATEC INC. and BILRAY SEWELL,
`
`Defendants.
`-------------------------------------------------------x
`
`Civil Action No. 22-cv-3619
`
`COMPLAINT AND JURY
`TRIAL DEMAND
`
`Electronically Filed
`
`:::::::::::::
`
`Plaintiff Preferred Pharmacy Plus LLC (“Plaintiff”), by and through its
`
`counsel, for its Complaint against Convatec Inc. (“Convatec”) and Bilray Sewell
`
`(“Sewell”) (collectively, “Defendants”), alleges as follows:
`
`PARTIES
`Plaintiff is a company organized and existing under the laws of the
`
`1.
`
`State of Delaware, with a place of business at 33 Corporate Drive Orangeburg, NY
`
`10962.
`
`2.
`
`On information and belief, Defendant Convatec is a Delaware
`
`corporation and maintains a place of business at 200 Crossing Boulevard, Suite
`
`101, Bridgewater, NJ 08807.
`
`3.
`
`On information and belief, Defendant Sewell is an individual
`
`employed by Defendant Convatec and resides in the State of North Carolina.
`
`{Client/087125/17/02314875.DOCX;2 }
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 2 of 25 PageID: 2
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`JURISDICTION AND VENUE
`The Court has subject matter jurisdiction over this action pursuant to
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`4.
`
`the Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202; the
`
`Trademark Act of 1946, as amended, 15 U.S.C. § 1051 et seq., including 15 U.S.C.
`
`§ 1121; and 28 U.S.C. §§ 1331, 1338, and 1367.
`
`5.
`
`Defendants are subject to general and specific jurisdiction in this
`
`Court, inter alia, because they conduct business in the District and have committed
`
`at least some of the acts complained of herein within this District.
`
`6.
`
`On information and belief, Defendant Convatec resides in New
`
`Jersey, does business in the State of New Jersey, sells large quantities of various
`
`products, including healthcare products, to customers in New Jersey, engages
`
`distributors based in New Jersey, maintains an interactive website accessed by
`
`residents of New Jersey, and otherwise avails itself of the privilege of doing
`
`business in the State of New Jersey.
`
`7.
`
`Each of the Defendants have purposely directed their activities,
`
`including the illegal acts against Plaintiff described below, toward this District and
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`this action arises from those activities.
`
`8.
`
`Venue in this District is proper under 28 U.S.C. §1391(b) because a
`
`substantial part of the events giving rise to the claims occurred in this District and
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`the Defendants are subject to personal jurisdiction in this District.
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`BACKGROUND FACTS
`On information and belief, Defendant Convatec is in the business of
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`9.
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`manufacturing and distributing healthcare products, including products sold under
`
`the CONVATEC and DUODERM marks (“Convatec Products”).
`
`10.
`
`On information and belief, Defendant Convatec is the owner of U.S.
`
`Trademark Registration No. 1223890 for DUODERM and Registration No.
`
`1380264 for CONVATEC (“the Convatec Registrations”).
`
`11.
`
`On information and belief, Defendant Sewell is the Associate Director
`
`– Channel Sales for Defendant Convatec.
`
`12.
`
`Plaintiff is in the business of lawfully acquiring and re-selling various
`
`consumer products for a profit.
`
`13.
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`14.
`
`Plaintiff resells products through an Amazon storefront.
`
`Since its formation, Plaintiff has served hundreds of thousands of
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`customers through its Amazon storefront.
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`15.
`
`Defendants’ illegal actions have irreparably damaged, and threaten to
`
`destroy, Plaintiff’s successful business.
`
`ONLINE MARKETPLACES
`Upon information and belief, Amazon is the world’s largest online
`
`16.
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`retailer.
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`17.
`
`According to published reports, Amazon is worth more than the next
`
`eight largest retailers located in the United States combined. See JP Mangalindan,
`
`Amazon is now worth more than America’s 8 largest retailers combined, Yahoo
`
`Finance (Jan. 25, 2017), https://finance.yahoo.com/news/amazon-is-now-worth-
`
`more-than-americas-8-largest-retailers-combined-124101625.html.
`
`18.
`
`Amazon’s online e-commerce platform allows for third-parties, like
`
`Plaintiff, to sell products on its e-commerce platform.
`
`19.
`
`The privilege of selling on Amazon is highly advantageous, as
`
`Amazon provides third-parties with exposure to the world marketplace on a scale
`
`that no other online retailer can currently provide.
`
`20.
`
`For several years, Plaintiff has had a contractual and business
`
`relationship with Amazon, such that Plaintiff was and is permitted to sell products
`
`on Amazon's e-commerce platform.
`
`21.
`
`Third-party sellers, like Plaintiff, create an online storefront on
`
`Amazon. When a customer buys a product on Amazon, the customer can see the
`
`online store from which the customer is purchasing a product. Thus, Plaintiff has
`
`the online equivalent of a brick-and-mortar store.
`
`22.
`
`A significant portion of Plaintiff’s business is derived from the sale of
`
`products on Amazon and, in particular, through its Amazon storefront.
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`23.
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`Once Plaintiff acquires products from reputable sources, Plaintiff
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`resells the same products on Amazon at a profit.
`
`24.
`
`In general, transactions on Plaintiff’s Amazon storefront are
`
`completed by Amazon, whereby Amazon ships Plaintiff’s products from an
`
`Amazon warehouse (known as “Fulfilment by Amazon” or “FBA”).
`
`25.
`
`Plaintiff has invested significant efforts into building a successful and
`
`reputable Amazon storefront.
`
`26.
`
`Plaintiff’s Amazon storefront has amassed over fourteen-thousand
`
`reviews and a holds a near perfect customer rating.
`
`27.
`
`A small sample of Plaintiff’s recent reviews are shown below:
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`28.
`
`Any harm that comes to the relationship between Plaintiff and
`
`Amazon creates a potential for serious and irreparable injury to Plaintiff.
`
`DEFENDANTS ATTEMPT TO STIFLE COMPETITION BY FILING
`FALSE INTELLECTUAL PROPERTY COMPLAINTS
`On information and belief, Defendants seek to increase their profits by
`
`29.
`
`controlling the distribution and pricing of their products, including the Convatec
`
`Products, through unlawful means.
`
`30.
`
`As demonstrated below, Defendants have engaged in a coordinated
`
`effort to preclude select third-parties from reselling genuine Convatec Products on
`
`online marketplaces by false allegations of intellectual property infringement and
`
`defamation.
`
`31.
`
`On information and belief, the purpose of these false complaints and
`
`defamatory statements was to prevent Plaintiff from selling genuine Convatec
`
`Products on Amazon.
`
`32.
`
`On information and belief, the purpose of these false complaints was
`
`to damage Plaintiff’s reputation and goodwill, such that Amazon would suspend or
`
`terminate its relationship with Plaintiff.
`
`33.
`
`Because Plaintiff sells only genuine products through its Amazon
`
`storefront, Defendants have no legitimate intellectual property claim(s) against
`
`Plaintiff.
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`34.
`
`Under the first sale doctrine, Plaintiff is lawfully permitted to re-sell
`
`Convatec Products without violating the intellectual property rights or other legal
`
`rights of Defendants.
`
`35.
`
`The first sale doctrine provides that, once a manufacturer places a
`
`product in the stream of commerce through its first sale, it can no longer enforce its
`
`intellectual property rights with regard to re-sellers, so long as the re-sellers are
`
`selling authentic, unaltered products.
`
`36.
`
`It is well-known among brand owners that Amazon has a policy of
`
`acting on virtually any notice of intellectual property infringement, whether
`
`legitimate or not.
`
`37.
`
`As one Amazon expert explained:
`
`In order to meet a minimum liability standard, Amazon will act upon
`properly submitted and completed notice claims of infringement. They
`will notify specified marketplace sellers which party reported them, on
`what listing, and how to reach that would-be rights owner via email.
`The rest though, is up to you. And, unless you (and possibly your legal
`team) can prove that the Notice claim is false, Amazon considers it
`valid and actionable.
`Unfortunately, word is out among potential Notice claim abusers that
`anyone can submit a form. Amazon [is] not worried about additional
`vetting or verification processes. Investigators merely check the form
`for completed content in all the right spaces, kill the listings and send
`off the notifications.
`They don’t independently verify that any of the information is actually
`correct, or valid. The rights owner makes a legally-binding declaration
`in the form, and signs it.
`
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 8 of 25 PageID: 8
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`See Chris McCabe, False Infringement Claims are Rife on Amazon, WebRetailer
`
`(Apr. 11, 2018), https://www.webretailer.com/lean-commerce/false-infringement-
`
`claims-amazon/ (last visited Jun 8, 2022) (emphasis added).
`
`38.
`
`On information and belief, Defendants were, at all relevant times,
`
`aware of the foregoing Amazon policy with respect to reports of intellectual
`
`property infringement.
`
`39.
`
`On information and belief, Defendants were, at all relevant times,
`
`aware that Amazon will act on reports of trademark infringement, regardless of the
`
`truth of the report.
`
`40.
`
`On information and belief, Hotaling and Sanniti were, at all relevant
`
`times, aware that Amazon will act on reports that a product is “counterfeit,”
`
`regardless of the truth of the report.
`
`41.
`
`The Lanham Act defines “counterfeit” as “a spurious mark which is
`
`identical with, or substantially indistinguishable from, a registered mark.” 15
`
`U.S.C. § 1127.
`
`42.
`
`Defendants filed complaints with Amazon that alleged that Plaintiff
`
`was selling “counterfeit” Convatec Products and infringed the Convatec
`
`Registrations.
`
`43.
`
`Defendants knew, or should have known, that such allegations were
`
`false. Hotaling and Sanniti’s allegations of counterfeiting were objectively
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 9 of 25 PageID: 9
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`unreasonable sham submissions made in bad faith in an effort to prevent Plaintiff’s
`
`resale of genuine Convatec Products on Amazon’s e-commerce platform.
`
`44.
`
`Each complaint submitted to Amazon was signed under penalty of
`
`perjury by an employee or agent of Defendants.
`
`45.
`
`On information and belief, the complaints were submitted by, or at the
`
`direction of, Defendant Sewell under penalty of perjury.
`
`46.
`
`For example, when submitting an infringement report to Amazon, an
`
`intellectual property rights owner must read and accept the following statements:
`
`“I have a good faith belief that the content(s) described above violate(s)
`my rights described above or those held by the rights owner, and that
`the use of such content(s) is contrary to law.”
`“I declare, under penalty of perjury, that the information contained in
`this notification is correct and accurate and that I am the owner or agent
`of the owner of the rights described above.”
`Report Infringement, https://www.amazon.com/report/infringement (last visited
`
`October 31, 2019).
`
`47.
`
`Once confirmed through discovery, all other individual(s) responsible
`
`for the false intellectual property complaints described below, will be added as
`
`defendants in this action.
`
`48.
`
`For example, on or about May 13, 2022, Plaintiff received a notice
`
`from Amazon stating as follows (annotated in yellow):
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 10 of 25 PageID: 10
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`Hello,
`
`We received a report from a rights owner that you are listing counterfeit
`products. Sellers on Amazon.com are not allowed to create listings or
`detail pages for counterfeit goods.
`
`We removed the content listed at the end of this email. We may let you list
`this product again if we receive a retraction from the rights owner. Their
`contact information can be found below.
`
`ConvaTec Brand Enforcement
`BrandEnforcement@Yazzer.com
`
`How do I reactivate my listing?
`Please visit the Account Health page in Seller Central
`(https://sellercentral.amazon.com/performance/dashboard?ref=ah_em_nr)
`to appeal this listing deactivation. Please click on the "Appeal" link next to
`the listing in the "Product and Policy Violations" section on the account
`health page.
`
`If the rights owner does not retract their complaint, or you do not provide
`supporting information, we may provide your contact information to the
`rights owner upon their request.
`
`We consider allegations of counterfeit a serious matter and your account is
`under review. If we receive more complaints about your listings, we may
`not allow you to sell on Amazon.com.
`
`To learn more about this policy, search for "Intellectual Property
`Violations" in Seller Central Help.
`
`ASIN: B00YVDS4BE
`
`{Client/087125/17/02314875.DOCX;2 }
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 11 of 25 PageID: 11
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`Title: ConvaTec DuoDERM Extra Thin CGF Sterile Self-Adhesive
`Hydrocolloid Dressing, Low Friction, Flexible, Latex-Free, Waterproof,
`4" x 4", 10ct (Pack of 3)
`
`Infringement type: Counterfeit
`Trademark: 1380264
`Complaint ID: 10057096671
`
`Sincerely,
`
`Seller Performance Team
`https://www.amazon.com
`Amazon.com
`
`49.
`
`The above report relates to a Convatec Product, which is referenced
`
`by its Amazon Standard Identification Numbers (“ASIN”).
`
`50.
`
`The Convatec Product identified in the above report as “counterfeit”
`
`was genuine.
`
`51.
`
`The Convatec Product identified in the above report as “counterfeit”
`
`was distributed by Defendant Convatec.
`
`52.
`
`On information and belief, prior to filing the above report, Defendants
`
`knew, or should have known, that the Convatec Product sold by Plaintiff was not
`
`“counterfeit.”
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`53.
`
`On information and belief, prior to filing the above report, Defendants
`
`knew, or should have known, that the Convatec Product sold by Plaintiff did not
`
`infringe the above cited Convatec Registration.
`
`54.
`
`On information and belief, Defendants’ allegation that the above
`
`Convatec Product was counterfeit was knowingly false and made in bad faith.
`
`55.
`
`In total, Defendants filed at least nineteen false reports with Amazon
`
`alleging that Plaintiff was selling counterfeit or otherwise infringing products:
`
`ASIN
`
`Complaint ID
`
`B018KURYDM
`B018KV9OMK;
`B07P7D32LY
`B001V9JUVE
`B00J7ULP3K
`B07B9RW7VY
`B01IRS9QZQ
`B07QY935KH
`B07QX9MSH9
`B00IK7CCR4
`B0045J6GDW
`B07X8KSK29
`B00JWS6Q2
`B00J7W3DQ0
`B000GG61HE
`B00I3YPL8G
`B000Q7WL2C
`B009BP0BKY
`B00JWS7ZC2
`B00164DZ56
`
`10027477911
`10027405941
`
`10027405941
`10027324411
`10027335571
`10027343901
`10010699561
`10010702441
`10010667291
`10010649391
`10004488091
`10075525821
`10075525741
`10075434931
`10075457811
`10075406871
`10075387111
`10075215841
`10075252181
`
`Trademark
`Asserted
`1223890
`1380264
`
`1380264
`1380264
`1380264
`1380264
`1223890
`1223890
`1223890
`1223890
`1223890
`1380264
`1380264
`1380264
`1380264
`1380264
`1380264
`1380264
`1380264
`
`56.
`
`The Convatec Products identified in the above reports were genuine.
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`57.
`
`The Convatec Products identified in the above reports were
`
`distributed by Defendant Convatec.
`
`58.
`
`On information and belief, prior to filing the above report, Defendants
`
`knew, or should have known, that the Convatec Products sold by Plaintiff did not
`
`infringe the above cited Convatec Registrations.
`
`59.
`
`On information and belief, Defendants’ allegations that the above
`
`Convatec Products infringed Defendants’ trademark rights were knowingly false
`
`and made in bad faith.
`
`DEFENDANTS REFUSE TO RETRACT THEIR FALSE REPORT TO
`AMAZON
`The above false reports are part of an ongoing and continuous course
`
`60.
`
`of conduct by Defendants to interfere in Plaintiff’s ability to resell Convatec
`
`Products.
`
`61.
`
`On or about May 3, 2022, counsel for Plaintiff contacted Defendants
`
`regarding the reports and requested, either: (1) an explanation for the reports; or (2)
`
`a retraction of the reports.
`
`62.
`
`In response, Defendants offered no coherent explanation for their
`
`reports of trademark infringement and refused to retract their complaints.
`
`63.
`
`On or about May 9, 2022 counsel for Plaintiff once again contacted
`
`Defendants and demanded retraction of the false reports. Defendants did not
`
`respond.
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`64.
`
`Defendants continued to submit false reports to Amazon, despite
`
`having no legal basis for the submissions.
`
`65.
`
`On or about May 17, 2022, counsel for Plaintiff forwarded Defendants
`
`a draft complaint and explained that absent retraction of the false complaints and
`
`cessation of tortious activity, Plaintiff would have no option but to pursue legal
`
`action. The same day, Defendants’ Deputy General Counsel responded that
`
`Defendants were investigating and would respond shortly.
`
`66.
`
`On or about May 20, 2022, Plaintiff received a letter from outside
`
`counsel for Defendants, James P. Flynn of Epstein Becker & Green, P.C. offering a
`
`litany of excuses and failing to address the actual reports made by Defendants.
`
`Notably, Defendants were unable to offer any factual support for their countless
`
`reports to Amazon that Plaintiff has sold counterfeit products, thus, confirming
`
`Defendants’ bad faith.
`
`67.
`
`Counsel for Defendants even attempted to assert that the false
`
`statements made by Defendants to Amazon were privileged, ignoring this Court’s
`
`precedent. See Hotaling & Co., LLC v. LY Berditchev Corp., No. 20-CV-16366,
`
`2022 WL 1134851, at *3 (D.N.J. Apr. 18, 2022) (“the Court is not aware of any
`
`court within the Third Circuit finding that litigation privilege applies under similar
`
`circumstances…”). Instead, counsel for Defendants cited to caselaw from
`
`California that had been expressly overruled by the Court of Appeals of the Ninth
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`Circuit. See Thimes Sols., Inc. v. TP Link USA Corp., No. 21-55407, 2022 WL
`
`1125628, at *1 (9th Cir. Apr. 15, 2022) (“California’s litigation privilege … does
`
`not shield Defendants’ complaints to Amazon from litigation.”).
`
`68.
`
`In all, Plaintiff requested support for Defendants’ allegations of
`
`counterfeiting—a serious charge—more than four times. Defendants were unable
`
`to provide any such evidence yet refused to retract their complaints. Instead,
`
`Defendants offered only bad faith arguments.
`
`69.
`
`These actions further demonstrate the complete lack of factual basis
`
`for Defendants’ actions and intentional disregard for the law.
`
`HARM TO PLAINTIFF
`As a result of the above false rights complaints, Plaintiff’s listings
`
`70.
`
`relating to Convatec Products were suspended, resulting in an immediate loss of
`
`revenue.
`
`71.
`
`It is well-known that complaints to Amazon put Amazon sellers in
`
`jeopardy of a full selling suspension, meaning that Plaintiff’s ability to sell any and
`
`all products on Amazon would be lost.
`
`72.
`
`On information and belief, Defendants were aware that complaints to
`
`Amazon, particularly those alleging trademark infringe, result in selling
`
`suspensions.
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`73.
`
`On information and belief, Defendants have used these same tactics,
`
`namely filing false infringement complaints, against other Amazon sellers.
`
`74.
`
`At no time has Plaintiff ever sold Convatec Products that infringed
`
`any of Defendants’ intellectual property or other legal rights.
`
`75.
`
`The Convatec Products sold by Plaintiff were, at all times, authentic
`
`products bearing the name of the manufacturer, and were otherwise, at all times,
`
`sold lawfully.
`
`76.
`
`Defendants knowingly made false intellectual property rights
`
`complaints against Plaintiff.
`
`77.
`
`Upon information and belief, the true purpose of these complaints was
`
`to ensure the suspension of Plaintiff’s marketplace listings, control pricing and
`
`eliminate fair competition.
`
`78.
`
`As result of Defendants’ false complaints, Plaintiff’s performance
`
`metrics were irreparably damaged.
`
`79.
`
`It is well-known that as much as 90% of all Amazon sales occur from
`
`Amazon’s “buy box,” a section of an Amazon product detail page where customers
`
`can add a product to their cart.
`
`80.
`
`Amazon determines which seller gets the “buy box” based on a
`
`number of factors, including the seller’s performance metrics.
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`{Client/087125/17/02314875.DOCX;2 }
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`81.
`
`Defendants’ false complaints have damaged Plaintiff’s metrics and
`
`caused Plaintiff to lose the “buy box” on many of its product listings.
`
`COUNT I - DECLARATORY JUDGMENT
`(No Trademark Infringement)
`Plaintiff realleges and incorporates all previous paragraphs.
`
`Defendants manufacture and distribute Convatec Products and place
`
`82.
`
`83.
`
`such products into the stream of commerce.
`
`84.
`
`Plaintiff stocks, displays, and resells new, genuine Convatec Products,
`
`each bearing a true mark.
`
`85.
`
`Defendants have submitted one or more complaints to Amazon that
`
`state that Plaintiff sold counterfeit Convatec Products.
`
`86.
`
`Defendants have submitted one or more complaints to Amazon that
`
`state that Plaintiff sold Convatec Products that infringed, inter alia, the Convatec
`
`Registrations.
`
`87.
`
`The Convatec Products sold by Plaintiff were genuine and in their
`
`original packaging.
`
`88.
`
`Defendants’ complaints have caused the suspension of Plaintiff’s
`
`selling privileges as they relate to Convatec Products.
`
`89.
`
`Defendants’ complaints put Plaintiff in jeopardy of permanent
`
`suspension of all selling privileges, which will cause extraordinary, irreparable,
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`{Client/087125/17/02314875.DOCX;2 }
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`-17-
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 18 of 25 PageID: 18
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`and untold damage on a business that is in the virtually exclusive business of
`
`selling products on e-commerce platforms.
`
`90.
`
`Under these facts, an actual controversy exists between Plaintiff and
`
`Defendants.
`
`91.
`
`Plaintiff is entitled to a declaratory judgment that it has not violated
`
`Defendants’ trademark rights or other rights, whether under Federal or State law.
`
`COUNT II – TORTIOUS INTERFERENCE WITH
`BUSINESS RELATIONS
`Plaintiff realleges and incorporates all previous paragraphs.
`
`Plaintiff has had an advantageous business relationship with Amazon,
`
`92.
`
`93.
`
`which allows Plaintiff to sell on Amazon’s e-commerce platform as a third-party
`
`seller.
`
`94.
`
`95.
`
`Plaintiff is also in a contractual relationship with Amazon.
`
`At all relevant times, Defendants were aware of Plaintiff’s business
`
`relationship with Amazon, as well as Plaintiff’s contractual relationship with
`
`Amazon.
`
`96.
`
`At all relevant times, Defendants were aware of the terms and
`
`conditions of Amazon, as well as the advantageous business relationship that
`
`comes with being an Amazon seller.
`
`97.
`
`Defendants intentionally and improperly interfered with Plaintiff’s
`
`advantageous relationship with Amazon by falsely claiming, with knowledge of
`
`{Client/087125/17/02314875.DOCX;2 }
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 19 of 25 PageID: 19
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`such falsity, to Amazon, that Plaintiff was selling counterfeit and infringing
`
`products.
`
`98.
`
`Defendants’ conduct directly and proximately caused disruption of
`
`Plaintiff’s relationship with Amazon.
`
`99.
`
`Defendants intended to cause Amazon to suspend Plaintiff’s ability to
`
`sell Convatec Products on Amazon and therefore interfere with the business
`
`relationship Amazon had with Plaintiff.
`
`100. Defendants had actual knowledge that their actions would cause
`
`Amazon to suspend Plaintiff’s ability to sell Convatec Products on Amazon.
`
`101. Defendants’ accusations of infringement, made directly to Amazon,
`
`were for the improper purpose of suppressing competition.
`
`102. Defendants’ actions interfered with Plaintiff’s business relationship
`
`with Amazon and proximately caused Plaintiff’s listings of Convatec Products to
`
`be suspended.
`
`103. Defendants’ accusations were false and were made maliciously and
`
`with ill will.
`
`104. Defendants continued to submit false reports to Amazon even after
`
`being advised by Plaintiff that the reports were false and Plaintiff requested
`
`support for the allegations.
`
`{Client/087125/17/02314875.DOCX;2 }
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`
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 20 of 25 PageID: 20
`
`105. Plaintiff has been damaged by suspension of these listings by losing
`
`revenue related to Convatec Products.
`
`106. Plaintiff is entitled to damages, costs and attorneys’ fees as allowed by
`
`law.
`
`107. Plaintiff has suffered injury and, unless Defendants are enjoined from
`
`such activity, will continue to suffer injury.
`
`COUNT III – DEFAMATION
`108. Plaintiff realleges and incorporates all previous paragraphs.
`
`109. Defendants published false statements to Amazon regarding Plaintiff
`
`as described in this Complaint, including reporting to Amazon that Plaintiff’s
`
`Convatec Products infringed the Convatec Registrations.
`
`110. Plaintiff did not infringe the Convatec Registration.
`
`111. Defendants’ false statements were injurious to Plaintiff’s business
`
`because they caused Amazon to suspend Plaintiff’s selling privileges related to
`
`Convatec Products.
`
`112. Defendants’ false statements were injurious to Plaintiff’s business
`
`because they caused Amazon’s and Plaintiff’s customers to avoid purchasing
`
`products from Plaintiff.
`
`{Client/087125/17/02314875.DOCX;2 }
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`-20-
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`
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 21 of 25 PageID: 21
`
`113. Upon information and belief, Defendants were, at a minimum,
`
`negligent in making the false statements to Amazon because, among other things,
`
`Defendants knew that Plaintiff sells genuine products.
`
`114. Defendants’ false statements are not protected by any privilege.
`
`115. Defendants acted with actual malice or with reckless disregard for the
`
`truth of the matter contained in Defendants’ false statements to Amazon and
`
`Plaintiff’s customers.
`
`116. False statements that are directed to the honesty, efficiency, or other
`
`business character traits amount to defamation per se.
`
`117. Here, Defendants published statements that Plaintiff was engaged in
`
`trademark infringement.
`
`118. Defendants’ false statements constitute defamation per se.
`
`119. Additionally, Plaintiff incurred special harm, including, but not
`
`limited to, suspension from selling Convatec Products and damage to its
`
`relationship with Amazon and its customers.
`
`120. Whether by defamation per se or by special harm, Plaintiff has
`
`suffered injury as Plaintiff’s selling privileges related to Convatec Products have
`
`been suspended and Plaintiff has lost sales of Convatec Products and many other
`
`products.
`
`121. Plaintiff is entitled to damages, costs, and fees as allowed by law.
`
`{Client/087125/17/02314875.DOCX;2 }
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`-21-
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 22 of 25 PageID: 22
`
`122. Plaintiff has suffered injury and, unless Defendants are enjoined from
`
`such activity, will continue to suffer injury.
`
`PRAYER FOR RELIEF
`WHEREFORE, the Plaintiff prays for judgment as follows:
`
`A.
`
`An order declaring that Plaintiff has not infringed any valid and
`
`enforceable intellectual property right owned by Defendants, including the
`
`Convatec Registration;
`
`B.
`
`Preliminary and permanent injunctive relief restraining Defendants,
`
`their agents, servants, employees, successors and assigns, and all others in concert
`
`and privity with Defendants, from filing complaints with Amazon and any other e-
`
`commerce platform.
`
`C.
`
`Injunctive relief requiring Defendants to rescind all complaints that
`
`they have filed against Plaintiff;
`
`D.
`
`An award of all damages that Plaintiff has suffered as a result of
`
`Defendants’ tortious interference;
`
`E.
`
`An award of all damages that Plaintiff has suffered as a result of
`
`Defendants’ defamation;
`
`F.
`
`G.
`
`An award of all costs and fees incurred in this Action; and
`
`Such other and further relief as the Court shall find just and proper.
`
`{Client/087125/17/02314875.DOCX;2 }
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`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 23 of 25 PageID: 23
`
`DEMAND FOR JURY TRIAL
`Plaintiff hereby requests a jury trial for all issues triable by jury including,
`
`but not limited to, those issues and claims set forth in any amended complaint or
`
`consolidated action.
`
`Dated: June 8, 2022
`
`Respectfully submitted,
`
`TARTER KRINSKY & DROGIN LLP
`
`By: s/Mark Berkowitz
`Mark Berkowitz
`1350 Broadway
`New York, NY 10018
`Tel.:
`(212) 216-8000
`Fax:
`(212) 216-8001
`E-mail: mberkowitz@tarterkrinsky.com
`Attorneys for Plaintiff
`
`{Client/087125/17/02314875.DOCX;2 }
`
`-23-
`
`
`
`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 24 of 25 PageID: 24
`
`LOCAL CIVIL RULE 11.2 CERTIFICATION
`
`Pursuant to Local Civil Rule 11.2, Plaintiff, through its attorneys, certifies
`
`that the matter in controversy is not the subject of any other action pending in any
`
`court, or of any pending arbitration or administrative proceeding.
`
`Dated: June 8, 2022
`
`Respectfully submitted,
`
`TARTER KRINSKY & DROGIN LLP
`
`By: s/Mark Berkowitz
`Mark Berkowitz
`1350 Broadway
`New York, NY 10018
`Tel.:
`(212) 216-8000
`Fax:
`(212) 216-8001
`E-mail: mberkowitz@tarterkrinsky.com
`Attorneys for Plaintiff
`
`{Client/087125/17/02314875.DOCX;2 }
`
`-24-
`
`
`
`Case 3:22-cv-03619 Document 1 Filed 06/08/22 Page 25 of 25 PageID: 25
`
`LOCAL CIVIL RULE 201.1 CERTIFICATION
`
`Pursuant to Local Civil Rule 201.1, Plaintiff, through its attorneys, certifies
`
`that the above captioned matter is not subject to compulsory arbitration.
`
`Dated: June 8, 2022
`
`Respectfully submitted,
`
`TARTER KRINSKY & DROGIN LLP
`
`By: s/Mark Berkowitz
`Mark Berkowitz
`1350 Broadway
`New York, NY 10018
`Tel.:
`(212) 216-8000
`Fax:
`(212) 216-8001
`E-mail: mberkowitz@tarterkrinsky.com
`Attorneys for Plaintiff
`
`{Client/087125/17/02314875.DOCX;2 }
`
`-25-
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`
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