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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF PENNSYLVANIA
`PHILADELPHIA DIVISION
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`§
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`§
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`§ CIVIL ACTION NO. _________________
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`§
`§
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`§
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`ABIRA MEDICAL LABORATORIES,
`LLC d/b/a GENESIS DIAGNOSTICS,
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` Plaintiff
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`vs.
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`MEDICAL DIAGNOSTIC
`LABORATORIES, LLC,
`
` Defendant
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`
`
`PLAINTIFF’S ORIGINAL COMPLAINT AND APPLICATION
`FOR PRELIMINARY AND PERMANENT INJUNCTION
`
`
`TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE:
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`
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`COMES NOW, Abira Medical Laboratories, LLC d/b/a Genesis Diagnostics, the Plaintiff
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`herein (“Genesis” or “Plaintiff”), who files this Original Complaint and Application for
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`Preliminary and Permanent Injunction against Defendant Medical Diagnostic Laboratories, LLC
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`(“MDL” or “Defendant”), and in support thereof, would respectfully show unto the Court as
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`follows:
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`1.
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`STATEMENT OF THE CASE
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`
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`1.1
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`This lawsuit is an action brought by the Plaintiff against the Defendant for
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`Trademark infringement in violation of the Trademark Laws of the United States, 15 U.S.C.
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`§§ 1051 et seq. and 15 U.S.C. §1114, as well as unfair competition under Section 43 of the
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`Lanham Act, 15 U.S.C. § 1125(a).
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 2 of 13
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`2.
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`JURISDICTION and VENUE
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`2.1
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`This Court has jurisdiction over the parties and subject matter jurisdiction over the
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`controversy in question pursuant to the provisions of 15 U.S.C. §1051 et seq., 15 U.S.C. §1121,
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`as well as 28 U.S.C. §§ 1331, 1338 & 1367.
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`2.2
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`A substantial part of the events or omissions giving rise to the claims brought by
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`Plaintiff herein occurred in the Eastern District of Pennsylvania, and/or a substantial part of
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`property that is the subject of this action is situated in said District. Hence, venue is appropriate
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`herein by virtue of 28 U.S.C.A. §1391(b).
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`3.
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`THE PARTIES
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`3.1
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`Plaintiff is a foreign limited liability company authorized to conduct business in
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`the Commonwealth of Pennsylvania. It holds a medical laboratory testing license issued by the
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`Commonwealth of Pennsylvania, and it maintains its principal place of business at 900 Town
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`Center Drive, Suite H50, Langhorne, PA 19047.
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`
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`3.2
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`Defendant is a foreign limited liability company authorized to conduct business in
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`the Commonwealth of Pennsylvania. It holds a medical laboratory testing license issued by the
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`Commonwealth of Pennsylvania, and it maintains its principal place of business at 2439 Kuser
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`Road, Hamilton Township, N.J. 08690. Its Chief Executive Officer and Founder is Eli
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`Mordechai, Ph.D. The Defendant may be served with summons and complaint by and through
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`Dr. Mordechai, who is located at 2439 Kuser Road, Hamilton Township, N.J. 08690, or
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`wherever he may be found.
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`Page 2 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 3 of 13
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`4.
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`FACTUAL BACKGROUND
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`
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`4.1
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`Plaintiff is a clinical medical laboratory based in Langhorne, Pennsylvania. It
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`holds a Pennsylvania medical laboratory license, and it provides clinical laboratory, pharmacy,
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`and addiction rehabilitation services to numerous medical service providers located throughout
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`the country. As part of its business model, the Plaintiff can perform laboratory testing services at
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`its facilities in Langhorne, Pennsylvania, or it can establish a laboratory facility on the premises
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`of a hospital and provide on-site clinical laboratory, pharmacy, genetics, and addiction
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`rehabilitation testing services on an in-patient or out-patient basis for the hospital’s patients (the
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`“Laboratory Testing Services”). Those Laboratory Testing Services, whether they are performed
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`in Pennsylvania or on-site, are normally billed directly to the patient, or a patient’s third-party
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`insurer, or to Medicare/Medicaid.
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`4.2
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`The Plaintiff
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`owns
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`the
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`federally
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`registered
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`trademark GENESIS
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`DIAGNOSTICS® (the “Word Mark”) (U.S. Registration No. 4865466) which it uses in
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`connection with its Laboratory Testing Services business. A copy of the GENESIS
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`DIAGNOSTICS® registration certificate is attached hereto as Exhibit 1. More specifically, the
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`Laboratory Testing Services
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`include biological, microbiological, serological, chemical,
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`immunohematological, hematological, biophysical, cytological, pathological, or other
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`examination of materials derived from the human body for purpose of providing information to
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`medical service providers for the diagnosis, prevention, or treatment of any disease or
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`impairment of human beings.
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`4.3
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`On February 6, 2020, Plaintiff filed a new trademark application, U.S. Appl. Ser.
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`No. 88/787323, containing the literal elements GENESIS DIAGNOSTICS along with an image
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`Page 3 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 4 of 13
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`of a crescent moon, which opens to the right with a structure of double-stranded DNA contained
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`inside the moon, with the word "GENESIS" to the right of the image and the word
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`"DIAGNOSTICS" underneath "GENESIS" (the “Stylized Mark”). Plaintiff’s first use of the
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`Stylized Mark in commerce was at least as early as April 14, 2015.
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`4.4
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` In December of 2018, Ms. Janna Liebmann, presented herself as a salesperson for
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`Defendant MDL, a division of "Genesis Diagnostics", to a phlebotomist at the DeRosa medical
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`practice in Chandler, Arizona, a client to whom Plaintiff provides Laboratory Testing Services.
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`A true and correct copy of the business card presented to DeRosa medical practice during Ms.
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`Liebmann’s sales call is attached hereto and incorporated herein for all purposes as Exhibit “2.”
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`4.5
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`On December 21, 2018 the Defendant was placed on notice by the Plaintiff and
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`requested to immediately cease and desist in its use of the service mark reflected in Exhibit 2 that
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`wrongfully interfered with Plaintiff’s Mark. On January 15, 2019, Ms. Susan Case, the Chief
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`Legal Officer for Defendant sent a letter to Plaintiff acknowledging the improper usurpation of
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`Plaintiff’s Mark, and also acknowledging that corrective action had been taken to remove any
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`reference to “Genesis Diagnostics” from the Defendant’s website, literature, and business
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`documents. A true and correct copy of Ms. Case’s January 15, 2019 correspondence is attached
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`hereto and incorporated herein for all purposes as Exhibit “3.”
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`4.6
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`Plaintiff had hoped that the corrective action reflected within Exhibit 3 would be
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`the end of the matter; however, such was not to be. In June of 2020, Plaintiff found that
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`Defendant was continuing to interfere with both its registered Word Mark and Stylized Mark
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`(collectively “Plaintiff’s Marks”). On June 11, 2020 Plaintiff sent a letter to Ms. Case outlining
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`Plaintiff’s pending application for its Stylized Mark. A true and correct copy of Plaintiff’s June
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`11, 2020 correspondence is attached hereto and incorporated herein for all purposes as Exhibit
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`Page 4 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 5 of 13
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`“4.” As reflected within Exhibit 4, Plaintiff’s pending application for its Stylized Mark was
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`suspended by the USPTO due to Defendant’s application for a competing trademark comprising
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`the literal elements “Genesis Clinical Diagnostics,” and “a division of Genesis Clinical
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`Diagnostics.” On information and belief, Plaintiff submits that Defendant wrongfully placed the
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`“Genesis Clinical Diagnostics,” and “a division of Genesis Clinical Diagnostics” marks into the
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`stream of commerce by publishing those marks on its website, thereby causing a likelihood of
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`confusion as to the source of Plaintiff’s Marks
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`4.7
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`Plaintiff has not at any time expressly, impliedly or in any other way sanctioned,
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`consented, approved, authorized or acquiesced to the use of its Word Mark, Stylized Mark, or
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`any confusing variation or formatives thereof, in connection with Defendant’s advertising and
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`sale of goods and services. However, because Defendant’s infringing activities are in the field of
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`laboratory testing services, customers and prospective customers of Plaintiff are, and will
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`continue to be, confused as to whether Plaintiff had consented, approved, authorized or
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`acquiesced to Defendant’s use of Plaintiff’s Word Mark, Stylized Mark, or any confusing
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`variation thereof, in connection with Defendant’s services.
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`4.8
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`Plaintiff has no control over the quality of Defendant’s services, and the
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`reputation and goodwill of Plaintiff are likely to be irreparably injured by such uncontrolled use
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`of its Mark, and infringement upon its common law and applied-for new Stylized Mark. Upon
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`information and belief, the aforementioned activities of Defendant have or will cause
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`considerable irreparable injury to Plaintiff and its business reputation and goodwill. Unless
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`restrained and enjoined by this Court, these activities will continue to cause irreparable harm to
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`Plaintiff, and Plaintiff will have no adequate remedy at law.
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`Page 5 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 6 of 13
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`5.
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`CAUSES OF ACTION
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`(A) COUNT ONE – Federal Trademark Infringement; Violation of 15 U.S.C. §1114.
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`5.1
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`Plaintiff realleges and incorporates herein, as if fully set forth at length, each
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`allegation and factual recitation set forth in paragraphs 4.1 through 4.8 above, as if repeated
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`verbatim herein, in this its First Cause of Action.
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`5.2
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`Defendant has infringed upon Plaintiff’s Marks in interstate commerce by various
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`acts, including offering for sale goods and/or services under the “Genesis Clinical Diagnostics,”
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`and “a division of Genesis Clinical Diagnostics” monikers, in connection with providing
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`competing laboratory testing services to customers located throughout the United States,
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`including, but not limited to customers residing in the Eastern District of Pennsylvania.
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`Defendant’s use of the “Genesis Clinical Diagnostics,” and “a division of Genesis Clinical
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`Diagnostics” monikers is without permission or authority of Plaintiff and said use is not only
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`likely but has in fact caused actual confusion and/or mistake. Thus, under 15 U.S.C. §1114
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`Defendant has infringed upon Plaintiff’s trademark rights in its federally registered Word Mark
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`and has also infringed upon and caused confusion with respect to Plaintiff’s Stylized Mark.
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`5.3
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`Because Defendant, despite Plaintiff’s cease and desist request, has continued to
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`misappropriate Plaintiff’s Marks by using the terms “Genesis” and “Diagnostics” in connection
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`with Defendant’s services that are the same or similar to those provided by Plaintiff, such actions
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`by Defendant must be viewed as part of a deliberate plan to trade on Plaintiff’s Marks and the
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`goodwill associated with same. With knowledge of Plaintiff’s ownership of both its registered
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`Word Mark and Stylized Mark, and with the deliberate intention to unfairly benefit from the
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`Page 6 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 7 of 13
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`goodwill generated thereby, the actions of Defendant have been carried out in willful disregard
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`of Plaintiff’s rights in violation of 15 U.S.C. § 1114.
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`(B) COUNT TWO – Federal Unfair Competition; Violation of 15 U.S.C. §1125(a).
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`5.4
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`Plaintiff realleges and incorporates herein, as if fully set forth at length, each
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`allegation and factual recitation set forth in paragraphs 4.1 through 5.3 above, as if repeated
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`verbatim herein, in this its Second Cause of Action.
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`5.5
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`Defendant’s unauthorized use and infringement of Plaintiff’s Marks constitutes a
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`false designation of origin of the goods and services made available by Defendant and a false and
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`misleading representation in violation of §43(a) of The Lanham Act, 15 U.S.C. §1125(a),
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`causing irreparable injury to Plaintiff. The unauthorized use by Defendant in commerce of
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`Plaintiff’s Marks on goods and services identical or substantially identical to that of Plaintiff is
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`not only likely but has in fact caused the public to mistakenly believe that Defendant’s business
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`activities and goods and services originate from, are sponsored by, or are in some way associated
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`with Plaintiff. Such actions constitute false designation of origin or false descriptions or
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`representations and are likely to cause Plaintiff’s Marks to lose their significance as an indicator
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`of origin. The actions by Defendant are in violation of 15 U.S.C. §1125(a).
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`5.6
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`Defendant’s unauthorized use of Plaintiff’s Marks on goods and services identical
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`or substantially identical to that of Plaintiff was and is being conducted with full knowledge of
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`Plaintiff’s rights. Thus, Defendant has willfully infringed and is infringing upon such rights in
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`violation of 15 U.S.C. §1125(a). Defendant’s conduct has caused and will continue to cause
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`irreparable injury to Plaintiff and will, unless restrained and enjoined by this Court, further
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`impair, if not destroy, the value of Plaintiff’s Marks and Plaintiff’s business reputation and
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`goodwill.
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`Page 7 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 8 of 13
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`5.7
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`Defendant’s continuing unfair competition relating to Plaintiff’s Marks is
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`knowing, intentional, malicious, fraudulent, deliberate, willful, wanton, reckless and egregious
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`and is being carried out with the intent to cause confusion, mistake or deception. This is an
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`exceptional case under 15 U.S.C. §1117. Plaintiff has no adequate remedy at law.
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`(C) COUNT THREE – Dilution under the Pennsylvania Trademark Act, 54 Pa.
`Cons. Stat. Ann. §1124.
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`Plaintiff realleges and incorporates herein, as if fully set forth at length, each
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`5.8
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`
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`allegation and factual recitation set forth in paragraphs 4.1 through 5.7 above, as if repeated
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`verbatim herein, in this its Third Cause of Action.
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`5.9
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`Plaintiff’s Marks have become “famous” in Pennsylvania as a result of Plaintiff’s
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`continued use of its registered Word Mark since as early as August 1, 2014 and Stylized Mark as
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`early as April 14, 2015. Defendant is making commercial use in interstate commerce of a mark
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`or trade name that was copied and/or wrongfully misappropriated from Plaintiff, and
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`Defendant’s use of the coopted Plaintiff Marks began after Plaintiff’s Marks became famous in
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`Pennsylvania. Defendant’s use causes dilution by lessening the capacity of the Plaintiff to
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`identify and distinguish goods or services.
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`(D) COUNT FOUR – Unfair Competition under Pennsylvania common law.
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`5.10 Plaintiff realleges and incorporates herein, as if fully set forth at length, each
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`allegation and factual recitation set forth in paragraphs 4.1 through 5.9 above, as if repeated
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`verbatim herein, in this its Fourth Cause of Action.
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`5.11 Defendant, by reason of the foregoing conduct, has attempted to compete unfairly
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`and has competed unfairly against Plaintiff with the specific intent to destroy Plaintiff’s ability to
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`conduct business, including the marketing of the Laboratory Testing Services under Plaintiff’s
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`Page 8 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 9 of 13
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`Marks The conduct of Defendant is and continues to be intentional, willful, malicious,
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`outrageous and in bad faith.
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`5.12 As a direct and proximate result of the foregoing conduct of Defendant, Plaintiff
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`has been damaged and will continue to be damaged and will suffer further irreparable injury
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`unless Defendant is enjoined by the Court. Plaintiff has no adequate remedy at law and
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`irreparable injury to Plaintiff increases with each and every action taken by Defendant with
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`respect to its continuing use of the infringing marks.
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`6.
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`JURY DEMAND
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`6.1
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`In accordance with the provisions of Fed. R. Civ. P. 38, Plaintiff hereby requests a
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`trial by jury on all issues of fact asserted herein.
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`7.
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`PLAINTIFF’S APPLICATION FOR INJUNCTION
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`7.1
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`Plaintiff realleges and incorporates herein, as if fully set forth at length, each
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`allegation and factual recitation set forth in paragraphs 4.1 through 5.12 above, as if repeated
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`verbatim herein, in this its request for both preliminary and permanent injunctive relief.
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`7.2
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`Plaintiff hereby applies for a preliminary injunction pursuant to Federal Rule of
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`Civil Procedure 65(a) to preliminarily enjoin Defendant, during the pendency of this action, from
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`continuing to willfully and deliberately infringe upon Plaintiff’s Marks, as well as engaging in
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`the unfair competition described in this Complaint. Such deliberate, willful and intentional use of
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`Plaintiff’s Marks constitutes infringement and false designation of origin which is likely to
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`deceive and has deceived customers and prospective customers into believing that Defendant’s
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`Page 9 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 10 of 13
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`goods and services are that of Plaintiff, and as a consequence is likely to divert and has diverted
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`customers away from Plaintiff.
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`7.3
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`Plaintiff is entitled to a preliminary injunction as requested herein pursuant to
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`Fed. R. Civ. P. Rule 65(a). After trial, Plaintiff is additionally entitled to a permanent injunction
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`as requested herein.
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`8.
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`DAMAGES
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`8.1
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`Plaintiff requests all actual damages against the Defendant in an amount to be
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`determined by the trier of fact, which Plaintiff submits are within the jurisdictional limits of the
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`Court.
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`8.2
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`Plaintiff requests all other damages, actual, general and/or special, legal and/or
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`equitable, as allowed by law; in excess of the minimum jurisdictional limits of the Court.
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`8.3
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`The acts and/or omissions of Defendant were performed intentionally, knowingly,
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`fraudulently, maliciously, and/or in utter disregard of the rights of Plaintiff. Accordingly,
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`Plaintiff additionally requests exemplary damages for all causes of action for which exemplary
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`damages are available herein.
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`9.
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`ATTORNEY’S FEES and COSTS OF COURT
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`9.1
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`To the extent allowed by either contract, statute, common law, or equity, Plaintiff
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`requests the Court to award it all reasonable and necessary attorney’s fees incurred by it in
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`prosecuting this lawsuit against Defendant.
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`9.2
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`Plaintiff requests the Court to award it all costs of court incurred herein which are
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`attributable to Plaintiff’s prosecution of this lawsuit against Defendant.
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`Page 10 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 11 of 13
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`law.
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`10.
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`PRE- AND POST-JUDGMENT INTEREST
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`10.1 Plaintiff hereby pleads for pre-judgment interest at the maximum rate allowed by
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`10.2 Plaintiff hereby pleads for post-judgment interest at the maximum rate allowed by
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`law.
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`DEMAND FOR RELIEF
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`WHEREFORE PREMISES CONSIDERED, Plaintiff Abira Medical Laboratories, LLC
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`d/b/a Genesis Diagnostics demands judgment herein against Defendant Medical Diagnostic
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`Laboratories, LLC as follows:
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`A judgment declaring that Plaintiff is the owner of the entire right, title and
`interest in and to the registered Trademark, Service Mark and Trade Name
`“GENESIS DIAGNOSTICS®,” and its Stylized Mark U.S. App. Ser. No.
`88787323 consisting of an image of a crescent moon which opens to the right
`with a structure of double-stranded DNA contained inside the moon, with the
`word "GENESIS" to the right of the image and the word "DIAGNOSTICS"
`underneath "GENESIS".
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`A judgment declaring that Plaintiff’s rights in Plaintiff’s Marks are valid,
`enforceable, and have been infringed by Defendant;
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`A judgment declaring that Defendant has competed unfairly with Plaintiff, has
`injured Plaintiff’s business reputation by the unauthorized use of Plaintiff’s Marks
`and has willfully violated the applicable laws of the United States and of the
`Commonwealth of Pennsylvania, all to the detriment of Plaintiff.
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`That Defendant, its representatives, agents, employees and all persons acting in
`concert, be preliminarily enjoined during the pendency of this action from using a
`Trademark, Service Mark, Trade Name, or any domain name, that is comprised in
`whole or in part of the words “Genesis” and “Diagnostics,” or any substantially
`similar term(s) which are likely to cause confusion with Plaintiff’s Marks.
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`A.
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`B.
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`C.
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`D.
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`Page 11 of 13
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 12 of 13
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`K.
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`L.
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`M.
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`N.
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`That Defendant, its representatives, agents, employees and all persons acting in
`concert, be permanently enjoined upon final judgment in this action from using a
`Trademark, Service Mark, Trade Name, or domain name that is comprised in
`whole or in part of the words “Genesis” and “Diagnostics,” or any substantially
`similar term(s) which are likely to cause confusion with Plaintiff’s Marks.
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`That Defendant be required to delete the words “Genesis” and “Diagnostics,” or
`any substantially similar variation thereof, from the name or designation of its
`business enterprise, and any websites or domain names owned by Defendant,
`during the pendency of this action.
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`That Defendant be required to deliver up for impoundment during the pendency
`of this action all materials relating to Plaintiff’s Marks, or any substantially
`similar variation thereof, and that Defendant be ordered to recall promptly all
`such items from all of its agents, representatives, customers and potential
`customers, and to deliver the recalled items to Plaintiff or its agents for
`impoundment.
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`That Defendant, its representatives, agents, employees and all persons acting in
`concert, be preliminarily enjoined during the pendency of this action from
`unfairly competing with Plaintiff.
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`That Defendant, its representatives, agents, employees and all persons acting in
`concert, be permanently enjoined upon final judgment in this action from unfairly
`competing with Plaintiff.
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`That Defendant be ordered to account for and award to Plaintiff all damages
`sustained by it on account of trademark infringement, unfair competition, dilution,
`and any other damages suffered by Plaintiff as a result of Defendant’s conduct as
`set forth herein, and that such damages be trebled.
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`That Defendant be ordered to pay Plaintiff the costs and disbursements associated
`with its claims and the bringing of this action.
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`That Defendant be ordered to pay the attorneys’ fees of Plaintiff incurred in this
`lawsuit.
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`That Defendant be required to pay all costs of court incurred by Plaintiff resulting
`from the filing and prosecution of this lawsuit.
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`That to the extent monetary damages are awarded herein to Plaintiff, that pre-
`judgment and post-judgment interest at the maximum rate(s) allowed by law be
`assessed.
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`Page 12 of 13
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`Respectfully submitted this 15th day of February, 2021.
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`By:
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`LAW OFFICE OF DAVID W. GHISALBERT
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` / S / D.W. Ghisalbert ______________________
`David W. Ghisalbert
`ID No. 328556
`2000 Bering Drive, Suite 700
`Houston, Texas 77057
`(713) 808-9697 [telephone]
`(713) 893-6942 [facsimile]
`dghisalbert@dwglawoffice.com [email]
`
`ATTORNEY FOR PLAINTIFF,
`ABIRA MEDICAL LABORATORIES,
`LLC d/b/a GENESIS DIAGNOSTICS
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`Case 2:21-cv-00688 Document 1 Filed 02/15/21 Page 13 of 13
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`O.
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`That this Court grant Plaintiff such other and further relief as the Court deems just
`and proper.
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`Page 13 of 13
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