throbber
Case 1:21-cv-05415 Document 1 Filed 09/29/21 Page 1 of 16 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
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`MÖLNLYCKE HEALTH CARE AB
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`Plaintiff,
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`Defendant.
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`-v-
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`SZY HOLDINGS LLC
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`COMPLAINT
`AND JURY DEMAND
`Case No. 1:21-cv-05415
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`Plaintiff, Mölnlycke Health Care AB (“Plaintiff” or “Mölnlycke”) by its undersigned
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`attorneys, Duane Morris LLP, for its Complaint against SZY Holdings LLC (“Defendant” or
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`“SZY”) alleges as follows:
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`NATURE OF THE ACTION
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`This action is being brought by Plaintiff to stop Defendant’s wrongful marketing,
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`promotion, advertising and sale of wound care products in the United States that violates
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`Plaintiff’s trademark rights. This is an action for trademark infringement and unfair competition
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`under Sections 32 and 43(a) of the Trademark Act of 1946 (the “Lanham Act”), 15 U.S.C.
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`§§ 1114, 1125(a), Deceptive Practices and False Advertising New York Gen. Bus. Law §§ 349-
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`350 and for substantial and related claims of trademark infringement and unfair competition
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`under the common law of the state of New York. Plaintiff brings this action based on
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`Defendant’s promotion, marketing, advertising and sale of wound care products in connection
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`with the name MEDITAC as well as the MEDITAC Logo,
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` (collectively, the
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`“Infringing Marks”). Defendant’s marketing, promotion, advertising and sale of wound care
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`products, including bandages and adhesive tapes under the Infringing Marks violates Plaintiff’s
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`longstanding rights in its MEPITAC trademark for wound dressings, medical and surgical
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`bandages and fixatives for bandages. Defendant’s conduct constitutes federal trademark
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`infringement and federal unfair competition as well as trademark infringement and unfair
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`competition under the common law of the state of New York, and is a flagrant violation of
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`Plaintiff’s trademark rights.
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`JURISDICTION AND VENUE
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`1.
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`This Court has subject matter jurisdiction under the Lanham Act, 15 U.S.C.
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`§ 1121, and under 28 U.S.C. §§ 1338(a) and 1338(b). The Court also has subject matter
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`jurisdiction under 28 U.S.C. § 1332(a). This Court has personal jurisdiction because Defendant
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`is organized under the laws of the State of New York, and resides in New York.
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`2.
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`Venue is proper in this district under 28 U.S.C. § 1391(b) and (c) because
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`Defendant resides in this district and has its company headquarters here.
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`PARTIES
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`3.
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`Plaintiff, Mölnylcke Health Care AB, is a corporation organized under the laws of
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`Sweden, with its principal place of business at Gamlestadvägen 3C, Göteborg, 40252 Sweden.
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`Mölnlycke is the owner of the valuable MEPITAC® trademark.
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`4.
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`Upon information and belief, Defendant, Defendant, SZY Holdings LLC is a
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`limited liability company organized and existing under the laws of the State of New York.
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`Defendant’s principal place of business is 300 Liberty Avenue, Brooklyn, NY 11207.
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`FACTS COMMON TO ALL CLAIMS FOR RELIEF
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`A. Mölnlycke’s Business and MEPITAC Trademark.
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`5.
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`Mölnlycke is a leading international medical solutions company headquartered in
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`Sweden, with a U.S. headquarters near Atlanta, Georgia. For decades, Mölnlycke has
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`manufactured and sold innovative medical products and devices, including wound care products,
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`2
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`gauzes, dressings, bandages, and adhesive medical tapes used by doctors, nurses, health care
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`professionals, and the general public.
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`6.
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`Mölnlycke owns U.S. Registration No. 3,051,065 for its mark MEPITAC, which
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`has a constructive date of first use of June 4, 2004, registered on January 24, 2006 and enjoys
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`incontestability status. A copy of the registration certificate and U.S. Patent and Trademark
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`Office (“USPTO”) TSDR printout is hereto attached as Exhibit A.
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`7.
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`Mölnlycke uses its MEPITAC trademark in connection with its wound, medical
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`and surgical dressings, bandages and fixatives to market and sell its products for a variety of
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`wound, medical and surgical applications, including adherence to a patient’s skin and fixing the
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`products to tubes, drains, electrodes, intravenous lines, etc.
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`8.
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`Mölnlycke has marketed, advertised, and promoted its goods under the MEPITAC
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`trademark in the United States continuously since at least as early as 2005, including in this
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`district (collectively, the MEPITAC trademark and MEPITAC Reg. No. 3,051,065 herein
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`referred to as the “MEPITAC Mark”).
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`9.
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`Mölnlycke’s wound, medical and surgical care products, sold under the
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`MEPITAC Mark, are sold to and used by hospitals, doctors, nurses, urgent care centers and other
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`medical and health professionals, in addition to the general public.
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`10.
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`Indeed, numerous Mölnlycke products, including its MEPITAC product, are
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`readily available at CVS pharmacy locations in this district and elsewhere in New York and the
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`United States as a whole.
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`11. Mölnlycke’s MEDITAC product is also available on Amazon.com.
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`12. Mölnlycke spends in excess of $1 million dollars per year to advertise and market
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`its products to consumers in the United States, including through its website at
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`www.Mölnlycke.us.
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`13. Mölnlycke’s marketing, and the quality of its innovative product offerings, have
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`made its products widely used by medical and health professionals and the general public.
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`14.
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`As a result of Mölnlycke’s substantial investment of time, effort and financial
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`resources in developing, marketing, advertising, and promoting its goods under the MEPITAC
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`Mark, the MEPITAC Mark has acquired and maintained a highly regarded reputation and
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`substantial goodwill. The MEPITAC Mark symbolizes the substantial and material goodwill that
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`Mölnlycke has created throughout the United States.
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`15.
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`The MEPITAC Mark has become well known to the consuming public and trade
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`as identifying Mölnlycke as the source of its innovative goods and as a result consumers are able
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`to distinguishes Mölnlycke’s goods from those of its competitors.
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`16. MEPITAC, which is a coined term, is a conceptually strong trademark.
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`Moreover, by virtue of the substantial sales of products under the mark, the MEPITAC Mark is
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`commercially strong as well.
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`17.
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`Accordingly, the MEPITAC Mark is strong and deserving of maximum protection
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`under trademark law.
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`B.
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`18.
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`19.
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`Defendant’s Violations of Mölnlycke’s Intellectual Property Rights and
`Defendant’s Acts of Unfair Competition
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`Defendant SZY Holdings LLC sells products under the brand name MEDITAC.
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`Defendant claims ownership of U.S. Trademark Registration No. 4,479,060 for
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`the mark
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`, which registered on February 4, 2014, for “military tote bags,
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`shoulder bags and backpacks” in Class 18 (the “MEDITAC Logo”). Until recently, Defendant’s
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`MEDITAC Logo was used solely on military tote bags, backpacks, and other sorts of bags.
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`20.
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`The only specimens of use (i.e., photographic evidence that the mark was being
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`used in commerce) ever submitted to the USPTO by Defendant for the MEDITAC Logo were of
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`a “Tactical Backpack.” Defendant submitted the exact identical images, to prove continued use
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`of the mark—two pictures of a black backpack with the MEDITAC Logo on the packaging—on
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`October 29, 2013 and June 5, 2019.
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`21.
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`On February 12, 2019, Defendant filed a trademark application (Application
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`Serial No. 88297676) at the USPTO for MEDITAC as a standard character mark (together with
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`the MEDITAC Logo, the “Infringing Marks”). In addition to the goods described in the
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`application for the MEDITAC Logo, Defendant sought registration for: “Adhesive bandages;
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`First aid kits; Gauze; Medical adhesive tape; Adhesive wound closure strips; Burn dressings;
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`Medical gear bags containing first aid kits; Backpacks containing first aid kits; Fanny packs
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`containing first aid kits” in Class 5.
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`22.
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`The goods described in the application for the MEDITAC standard character
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`mark would bring Defendant’s MEDITAC-branded goods into direct competition with
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`Mölnlycke’s wound care products marketed under its MEPI- marks, including its MEPITAC
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`Mark. Therefore, almost two (2) years ago, Mölnlycke partially opposed Defendant’s
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`MEDITAC standard character application for the Class 5 goods. That proceeding is currently
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`pending before the Trademark Trial and Appeal Board.
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`23.
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`Since the opposition was filed, Defendant has expanded its use of the Infringing
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`Marks. By way of example, Defendant has expanded its product offerings to a variety of medical
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`goods, including gauze, bandages, adhesive tapes, tourniquets, and other wound dressings.
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`24.
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`Likewise, Defendant is marketing its wound care products in the same trade
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`channels and to the same consumers to whom Mölnlycke markets and sells. Defendant’s
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`redesigned website advertises its products to, among others, “First Responders,” “Healthcare”
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`workers, including “Doctor[s], Nurse[s], [and] Dentist[s],” and “Individuals”:
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`25. Mölnlycke sells its products to the same classes of consumers as Defendant. The
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`products sold under the MEPITAC Mark are not expensive, which further increases the
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`likelihood of consumer confusion.
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`26.
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`In addition, Defendant recently created a dedicated Amazon.com storefront page,
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`where it sells numerous MEDITAC-branded products. Among Defendant’s products branded
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`with the Infringing Marks are high-pressure bandages, adhesive tape, and tourniquets, as shown
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`below:
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`27.
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`Upon information and belief, Defendant currently markets, promotes, advertises
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`and sells these and other products in connection with the Infringing Marks.
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`28.
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`These products, among others sold by Defendant, compete directly with
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`Mölnlycke’s wound care products, including the goods sold under the MEPITAC Mark.
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`29.
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`Defendant’s activities are clearly intended to create consumer confusion as to the
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`source of Defendant’s bandages, tapes, and wound dressings offered under the Infringing Marks
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`and create a false association between Defendant’s infringing medical products and Mölnlycke’s
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`medical products in the minds of the consuming public.
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`30.
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`Upon information and belief, Defendant’s use of the Infringing Marks is intended
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`to trade upon the extensive goodwill built up by Mölnlycke in its MEPITAC Mark and its other
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`MEPI- Marks and to reap the benefits of the years of effort invested by Mölnlycke to create
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`public recognition of its marks and the goods sold thereunder.
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`31.
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`Defendant’s deliberate and willful infringement is designed to misappropriate
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`Mölnlycke’s MEPITAC Mark, confuse consumers as to the source of Defendant’s goods and
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`trade upon Mölnlycke’s valuable intellectual property, good will and reputation.
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`32.
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`Upon information and belief, Defendant has and/or intends to pass off its products
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`as Mölnlycke’s products in a manner calculated to deceive Mölnlycke’s customers and members
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`of the general public.
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`33.
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`Indeed, Defendant sells its products under the Infringing Marks through precisely
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`the same sales channels to precisely the same classes of consumers that Mölnlycke does.
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`Specifically, Defendant markets its products to both medical and healthcare professionals and to
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`the general public, including over the internet at its website and through its Amazon store.
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`34.
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`By virtue of its registration and longstanding use of the MEPITAC Mark in the
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`United States, Mölnlycke’s rights in its MEPITAC Mark precedes Defendant’s use of the
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`Infringing Marks or any other date upon which Defendant can rely on for purposes of priority.
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`Mölnlycke has superior rights to Defendant in the MEPITAC Mark.
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`35.
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`Defendant’s MEDITAC Mark is extremely similar in appearance, in fact, virtually
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`identical, to Mölnlycke’s MEPITAC Mark. Indeed, the MEDITAC Mark changes only a single
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`letter from the MEPITAC Mark. Moreover, the MEPITAC Logo cuts off the upper part of the
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`lowercase ‘d’, making the logo even harder to distinguish from the word mark MEPITAC.
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`36.
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`Defendant’s acts of trademark infringement are particularly egregious in light of
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`the fact that Defendant has expanded and developed its willfully infringing products and
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`marketing after being put on notice of Mölnlycke’s rights in the MEDITAC Mark through the
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`pending opposition proceeding.
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`37.
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`Prior to filing this Complaint, Mölnlycke sent a cease and desist letter to
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`Defendant, advising Defendant that its expanded use of the Infringing Marks violated
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`Mölnlycke’s rights in its MEPITAC Mark.
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`38.
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`Defendant has neither ceased its illegal marketing, promotion, advertising and/or
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`provision of goods, nor agreed to abandon the illegal marketing, advertising, promoting, and/or
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`provision of its goods under the Infringing Marks.
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`39.
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`To date, Defendant continues to promote and foster consumer confusion, and
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`unfairly compete with Mölnlycke by marketing, promoting, advertising and providing its
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`medical products under the Infringing Marks.
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`40.
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`41.
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`Defendant’s conduct is intentionally malicious, willful and wanton.
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`Defendant’s acts of imitation will be committed with knowledge that such
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`imitation is intended to be used to cause confusion or mistake or to deceive.
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`FIRST CLAIM FOR RELIEF
`FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. § 1114(1))
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`42.
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`Plaintiff re-alleges paragraphs 1 through 41 above and incorporates them by
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`reference as if fully set forth herein.
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`43.
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`Defendant’s use of a copy, variation, simulation or colorable imitation of
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`Plaintiffs’ registered MEPITAC Mark in connection with medical products, and specifically
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`bandages, tapes, and wound dressings, infringes Mölnlycke’s exclusive rights in its federally
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`registered MEPITAC Mark, and is likely to cause confusion, mistake, or deception, and
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`constitutes trademark infringement, in violation of Section 32(1) of the Lanham Act, 15 U.S.C.
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`§1114(1).
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`44.
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`Defendant uses a copy, variation, simulation or colorable imitation of
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`Mölnlycke’s MEPITAC Mark with full knowledge of the long and extensive prior use of the
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`MEPITAC Mark by Mölnlycke.
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`45.
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`Defendant’s conduct is causing immediate and irreparable injury to Mölnlycke,
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`and to its goodwill and reputation, and will continue both to damage Mölnlycke and to confuse
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`the public unless enjoined by this Court. Mölnlycke has no adequate remedy at law.
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`SECOND CLAIM FOR RELIEF
`FEDERAL UNFAIR COMPETITION (15 U.S.C. § 1125(a))
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`Plaintiff re-alleges paragraphs 1 through 45 above and incorporates them by
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`46.
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`reference as if fully set forth herein.
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`47. Mölnlycke is the valid owner of the distinctive MEPITAC Mark, which is entitled
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`to full recognition and protection under federal trademark law.
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`48.
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`Defendant’s unauthorized actions, as described herein, constitute false designation
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`of origin and have caused and/or are likely to cause confusion, mistake, or deception among the
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`consuming public.
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`49.
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`Defendant’s actions have been undertaken with full knowledge of Mölnlycke’s
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`longstanding and extensive prior use of the MEPITAC Mark in connection with medical
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`products, and specifically bandages, tapes, and wound dressings.
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`50.
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`Defendant’s acts are in violation of Section 43(a) of the Lanham Act, 15 U.S.C.
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`§ 1125(a).
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`51.
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`Defendant’s conduct will cause irreparable injury to Mölnlycke unless enjoined
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`by this Court. Mölnlycke has no adequate remedy at law.
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`THIRD CLAIM FOR RELIEF
`COMMON LAW UNFAIR COMPETITION
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`Plaintiff re-alleges paragraphs 1 through 51 above and incorporates them by
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`52.
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`reference as if fully set forth herein.
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`53.
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`Defendant is aware of Mölnlycke’s prior use of its MEPITAC Mark, at least
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`because of the ongoing opposition proceeding filed almost two (2) years ago against Defendant’s
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`application for the MEDITAC standard character mark, and continues to undertake the actions
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`described herein in disregard of Mölnlycke’s rights in the MEPITAC Mark in connection with
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`bandages, fixatives for bandages, wound dressings, and tapes. Upon information and belief, the
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`aforementioned conduct of Defendant will result in the misappropriation of and trading upon
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`Mölnlycke’s goodwill and business reputation at Mölnlycke’s expense and at no expense to
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`Defendant. The effect of Defendant’s misappropriation of the goodwill symbolized by
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`Mölnlycke’s MEPITAC Mark is to unjustly enrich Defendant, damage Mölnlycke and confuse
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`and/or deceive the public.
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`54.
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`Defendant’s conduct constitutes unfair competition with Mölnlycke, all of which
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`will cause irreparable injury to Mölnlycke’s goodwill and reputation unless enjoined by this
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`Court. Mölnlycke has no adequate remedy at law.
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`FOURTH CLAIM FOR RELIEF
`COMMON LAW TRADEMARK INFRINGEMENT
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`Plaintiff re-alleges paragraphs 1 through 54 above and incorporates them by
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`55.
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`reference as if fully set forth herein.
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`56.
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`Defendant’s use of the Infringing Marks is likely to cause confusion or mistake,
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`or to deceive consumers as to the affiliation, connection, or association of Defendant with
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`Mölnlycke, or to cause confusion or mistake, or to deceive consumers as to the origin,
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`sponsorship or approval of Defendant’s goods with Mölnlycke’s goods.
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`57.
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`The unauthorized, intentional, willful and bad faith acts and practices of
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`Defendant set forth above will constitute trademark infringement in violation of common law.
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`58. Mölnlycke is likely to be damaged by Defendant’s infringing and unlawful acts.
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`59.
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`The acts and practices of Defendant complained of herein are likely to cause
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`Mölnlycke to suffer irreparable harm.
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`60. Mölnlycke has no adequate remedy at law and is entitled to and seeks injunctive
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`relief as a result thereof.
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`FIFTH CLAIM FOR RELIEF
`VIOLATION OF NEW YORK DECEPTIVE TRADE PRACTICES ACT
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`61.
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`Plaintiff re-alleges paragraphs 1 through 60 above and incorporates them by
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`reference as if fully set forth herein.
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`62.
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`Defendant has used and will continue to use the Infringing Marks to sell its goods
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`to consumers in this district and in the State of New York.
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`63.
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`Upon information and belief, Defendant’s marketing efforts, including the design
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`of its website and Amazon store, are directed from its headquarters in the State of New York.
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`64.
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`Defendant’s use of the Infringing Marks is directed to consumers, and is designed
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`to convince consumers to purchase Defendant’s medical products, including bandages, wound
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`dressings, and medical tapes.
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`65.
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`Unless Defendant’s conduct is enjoined, consumers will be misled and deceived
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`into purchasing Defendant’s substandard medical products instead of Mölnlycke’s high-quality
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`products, and harm consumers and the general public.
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`66. Moreover, Defendant’s use of the Infringing Marks will confuse and deceive
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`consumers, who will wrongly believe that Mölnlycke has approved or sponsored Defendant’s
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`products, or that Mölnlycke otherwise is affiliated with Defendant.
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`67. Mölnlycke is likely to be damaged by Defendant’s unlawful acts.
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`68.
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`The acts and practices of Defendant complained of herein are likely to cause
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`Mölnlycke to suffer irreparable harm.
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`69. Mölnlycke has no adequate remedy at law and is entitled to and seeks injunctive
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`relief as a result thereof.
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`PRAYER FOR RELIEF
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`WHEREFORE, Mölnlycke demands judgment as follows:
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`1. Preliminarily and permanently enjoining Defendant, its employees, agents,
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`officers, directors, attorneys, successors, affiliates, subsidiaries and assigns, and all those in
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`active concert and participation with Defendant from:
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`(a)
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`using or authorizing any third party to use as a trademark, service mark,
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`domain name, business name, trade name or symbol of origin: the
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`Infringing Marks and any name or mark incorporating MEPITAC, and/or
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`any other counterfeit, copy, simulation, confusingly similar variation, or
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`colorable imitation of Mölnlycke’s MEPITAC Mark in any manner or
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`form, on or in connection with bandages, first aid kits, medical tapes,
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`wound closure strips, burn dressings, or wound dressings, or in the
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`marketing, advertising and promotion of the same;
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`(b)
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`imitating, copying or making any unauthorized use of Mölnlycke’s
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`MEPITAC Mark and/or any copy, simulation, variation or imitation
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`thereof;
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`(c)
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`making or displaying any statement or representation that is likely to lead
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`the public or the trade to believe that Defendant’s goods sold under the
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`Infringing Marks are in any manner associated or affiliated with or
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`approved, endorsed, licensed, sponsored, authorized or franchised by or
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`are otherwise connected with Mölnlycke;
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`(d)
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`using or authorizing any third party to use in connection with the
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`rendering, offering, advertising, or promotion of any goods, any false
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`description, false representation, or false designation of origin, or any
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`marks, names, words, symbols, devices, or trade dress which falsely
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`associate such goods or services with Mölnlycke or tend to do so;
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`diluting the distinctive quality of Mölnlycke’s MEPITAC Mark;
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`registering or applying to register as a trademark, service mark, domain
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`name, trade name or other source identifier or symbol of origin, the
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`Infringing Marks in connection with bandages, first aid kits, medical
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`(e)
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`(f)
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`tapes, wound closure strips, burn dressings, or wound dressings, whether
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`alone or in combination with any other words or designs, or any other
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`mark, trade dress or name that infringes on or is likely to be confused with
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`Mölnlycke’s MEPITAC Mark;
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`(g)
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`engaging in any other activity constituting unfair competition with
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`Mölnlycke, or constituting an infringement of Mölnlycke’s MEPITAC
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`Mark, or confusingly similar variation or Mölnlycke’s rights therein; and
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`(h)
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`aiding, assisting or abetting any other party in doing any act prohibited by
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`sub-paragraphs (a) through (g).
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`2. Directing that Defendant deliver for destruction any products, advertisements, or
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`other materials in its possession, or under its control, incorporating the Infringing Marks in
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`connection with bandages, first aid kits, medical tapes, wound closure strips, burn dressings, or
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`wound dressings, or bearing simulations, variations or colorable imitations thereof, whether used
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`alone or in combination with other words and/or designs.
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`3. Directing such other relief as the Court may deem appropriate to prevent the trade
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`and public from deriving the erroneous impression that any product or service sold, distributed,
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`licensed or otherwise offered, circulated or promoted by Defendant is authorized by Mölnlycke
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`or related in any way to Mölnlycke’s goods or services offered under the MEPITAC Mark.
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`4. Directing that Defendant file with the Court and serve upon Mölnlycke’s counsel
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`within thirty (30) days after entry of such judgment, a report in writing under oath, setting forth
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`in detail the manner and form in which Defendant has complied therewith.
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`5. Awarding Mölnlycke such damages as it has sustained or will sustain by reason of
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`Defendant’s trademark infringement and unfair competition.
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`6. Awarding Mölnlycke all gains, profits, property and advantages derived by
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`Defendant from such conduct; and pursuant to 15 U.S.C. § 1117, awarding Mölnlycke an amount
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`up to three times the amount of the actual damages sustained as a result of Defendant’s violation
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`15
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`Case 1:21-cv-05415 Document 1 Filed 09/29/21 Page 16 of 16 PageID #: 16
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`of the Lanham Act and of the New York Deceptive Trade Practices Act, N.Y. Gen. Bus. Law.
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`§ 349.
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`7. Awarding Mölnlycke exemplary and punitive damages to deter any future willful
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`infringement as the Court finds appropriate.
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`8. Awarding Mölnlycke its costs and disbursements incurred in this action, including
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`its reasonable attorneys’ fees.
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`9. Awarding Mölnlycke’s interest, including pre-judgment interest, on the foregoing
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`sums.
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`Mölnlycke hereby demands a trial by jury pursuant to Fed. R. Civ. P. 38.
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`JURY DEMAND
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`Dated: September 29, 2021
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`DUANE MORRIS LLP
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`By: s/ Ralph Carter
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` Ralph Carter
`1540 Broadway
`New York, New York 10036-4086
`Tel: (212) 692-1000
`Fax: (212) 692-1020
`Email: rcarter@duanemorris.com
`- and -
`Nicole K. McLaughlin (pro hac vice forthcoming)
`nkmclaughlin@duanemorris.com
`Tyler Marandola (pro hac vice forthcoming)
`tmarandola@duanemorris.com
`Lauren C. Matturri (E.D.N.Y. Bar No. 5650635)
`Duane Morris, LLP
`30 South 17th Street
`Philadelphia, PA 19103
`Tel: 215-979-1000
`Fax: 215-979-1020
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`Attorneys for Plaintiff, Mölnlycke Health Care AB
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`16
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