0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`ROCK HILL DIVISION
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`Nutramax Laboratories, Inc. and Nutramax
`Laboratories Veterinary Sciences, Inc.,
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`Plaintiffs,
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`v.
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`Veterinary Internet Company, LLC (a/k/a
`VetInternetCo.com or vic.pharmacy),
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`Defendant.
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`0:22-cv-02317-MGL
`Civil Action No. ____________
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`COMPLAINT AND JURY DEMAND
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`COMPLAINT
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`NOW COMES Nutramax Laboratories, Inc. (“Nutramax Labs”) and Nutramax
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`Laboratories Veterinary Sciences, Inc. (“Nutramax”) (individually a “Plaintiff” and collectively
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`“Plaintiffs”), by and through their undersigned counsel, and for their Complaint against Defendant
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`Veterinary Internet Company, LLC (a/k/a VetInternetCo.com or vic.pharmacy, (“Defendant”)
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`states as follows:
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`THE PARTIES
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`1.
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`Nutramax Labs is a South Carolina corporation with its principal place of business
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`at 946 Quality Drive, Lancaster, South Carolina 29720.
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`2.
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`Nutramax is a South Carolina corporation with its principal place of business at 946
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`Quality Drive, Lancaster, South Carolina 29720.
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`3.
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`Upon information and belief, Veterinary Internet Company, LLC (a/k/a
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`VetInternetCo.com or vic.pharmacy), is an Alabama limited liability company having an address
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`at 9542 Union Grove Road., Union Grove, AL 35175.
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`1
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 2 of 10
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`JURISDICTION AND VENUE
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`4.
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`This Court has personal jurisdiction over Defendant because Defendant has
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`transacted business in the State of South Carolina; committed tortious acts or omissions causing
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`an injury in the State of South Carolina; and caused tortious injury in the State of South Carolina
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`by an act or omission outside the State of South Carolina in connection with its regular business
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`activities in the State of South Carolina. Additionally, Defendant has consented to the jurisdiction
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`of this Court by virtue of a forum selection clause in the United States Authorized Direct Reseller
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`Agreement (the “Agreement”) that forms the basis of Plaintiff Nutramax’s claims in this
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`Complaint.
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`5.
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`This Court has subject matter jurisdiction over Plaintiff Nutramax Labs’ claim in
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`Count I pursuant to 15 U.S.C. § 1121 (actions arising out of the Lanham Act); 28 U.S.C. § 1331
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`(federal jurisdiction); and 28 U.S.C. § 1338 (general jurisdiction for trademark actions). This
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`Court has supplemental jurisdiction over the remaining claim in Count II under 28 U.S.C. § 1367
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`because that claim is so related to the federal claim asserted in Count I that they form part of the
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`same case or controversy.
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`6.
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`This Court further has subject matter jurisdiction pursuant to 28 U.S.C. § 1332
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`because there is complete diversity of citizenship between Plaintiffs, citizens of South Carolina,
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`on the one hand, and the Defendant, a citizen of Alabama, on the other, and the amount in
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`controversy is in excess of $75,000.00, exclusive of interest and costs.
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`7.
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`Venue in this District is proper pursuant to 28 U.S.C. § 1391, and particularly in
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`this division under Local Civ. Rule 3.01(A) because a substantial part of the events and activities
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`giving rise to the claims occurred in the District of South Carolina and because a portion of Plaintiff
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`2
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 3 of 10
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`Nutramax’s claims arise under the Agreement, which contains a forum selection clause requiring
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`claims to be filed in Lancaster County, South Carolina, which is in this Division.
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`GENERAL ALLEGATIONS
`Nutramax is a company dedicated to the research and development of the highest
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`8.
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`quality products in the nature of supplements to support health and wellness. Nutramax is proud
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`to be the industry leader in setting and adhering to strict standards for manufacturing and quality
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`in the field of supplements.
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`9.
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`Nutramax Labs owns certain intellectual property, including several federally
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`registered trademarks, including but not limited to United States Registration Nos.: 4,654,181 for
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`NUTRAMAX LABORATORIES VETERINARY SCIENCES, INC. and design; 1,791,253 and
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`5,662,197 for COSEQUIN; and 3,266,390 for DASUQUIN (collectively, the “Nutramax Marks”),
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`which are licensed for use by Nutramax.
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`10.
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`Nutramax offers a wide array of supplements, including for dogs, cats, and horses.
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`These supplements support joint health, digestive health, skin and coat health, and provide other
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`helpful benefits to such animals.
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`11.
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`Nutramax firmly believes that its supplements should be backed by scientific
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`research. Nutramax’s commitment to research is evident from, among other things, a state-of-the
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`art research facility.
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`12.
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`To ensure it is offering safe and effective supplements, Nutramax regularly
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`conducts research and/or studies on its own products. Many of these studies have been published
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`and/or presented in medical, veterinary, and other health-related journals and publications.
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`Nutramax also conducts studies relating to efficacy, bioavailability, and safety.
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`3
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`13.
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`In addition to the cutting-edge research and development of Nutramax, Nutramax
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`Labs has been successful in obtaining intellectual property protection related to its supplements,
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`including a large portfolio of domestic and foreign patents.
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`14.
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`Due to the considerable resources dedicated to development and research,
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`supplements bearing the Nutramax brand are widely regarded as the gold standard in the industry.
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`15.
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`Supplements offered under the Nutramax Marks are highly renowned, and
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`Plaintiffs collectively have invested many millions of dollars and have expended significant time
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`and effort in advertising, promoting, and developing their trademarks, including the Nutramax
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`Marks, throughout the United States. Such advertising and promotion have established substantial
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`goodwill and widespread recognition in the Nutramax Marks, by both customers and potential
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`customers, as well as the public at large. The end result of this considerable advertising
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`expenditure, promotion, and goodwill is that both the Nutramax brand and the Nutramax Marks
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`have achieved substantial fame among consumers.
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`16.
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`To create and maintain such goodwill, Nutramax has taken substantial steps to
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`ensure that products bearing its trademarks, including the Nutramax Marks, are of the highest
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`quality and, thus, such trademarks are recognized in the United States as symbols of the highest
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`quality products.
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`17.
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`On August 17, 2015, Nutramax and Defendant entered into the United States
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`Authorized Direct Reseller Agreement (the “Agreement”) describing the rights and obligations of
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`Defendant and Nutramax with respect to the appointment of Defendant as an authorized reseller
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`of certain Nutramax Products (the “Product(s)”) as defined therein and listed on Schedule A of the
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`Agreement.
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`4
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 5 of 10
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`18.
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`Under Section 5 of the Agreement, Nutramax granted Defendant a limited, non-
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`exclusive, non-assignable, non-sublicensable, non-transferable, revocable license to use the
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`“Licensed IP” (defined in the Agreement as “trademarks, tradenames, product images, and/or
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`marketing banners provided by Nutramax”) (“Licensed IP”), for the sole purpose of advertising
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`and promoting the sale of Products within the United States of America to “End-Users” (defined
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`in the Agreement as “any purchaser of the Product(s) from [Nutramax] who is the ultimate
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`consumer for whom the Product is designed and who does not intend to resell the Product to a
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`third party”) (“End-Users”) subject to certain restrictions and limitations described therein.
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`19.
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`Under Section 5 of the Agreement, Defendant agreed to “not use the Licensed IP
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`in a manner that disparages Nutramax or the Products, blurs, dilutes or otherwise diminishes the
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`Licensed IP, or portrays Nutramax or the Products in a false, competitively adverse or poor light.”
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`20.
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`Further under Section 7(c) of the Agreement, Defendant agreed that it shall
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`“maintain and stock: (i) an adequate supply of the Products to satisfy the demand of its customers
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`and (ii) a representative sample of all Products.”
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`21.
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`Additionally, under Section 7(f) of the Agreement, Defendant agreed that it shall
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`“not adulterate, mislabel or tamper with any Product.”
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`22.
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`Pursuant to Section 9, the Agreement could be terminated by Nutramax
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`immediately upon written notice to Defendant in the event of a breach by Defendant of Sections
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`1, 2, 3, 4, 5, or 7 of the Agreement; or by Nutramax or Defendant, without cause or liability, upon
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`thirty (30) days’ prior written notice to the other party.
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`23.
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`Pursuant to Section 24 of the Agreement, Nutramax has the right to seek immediate
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`injunctive relief against Defendant for any breach of the Agreement without having to provide
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`notice to Defendant or having to post a bond.
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`24.
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`At all times relevant hereto, Nutramax has complied with its obligations under the
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`Agreement.
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`25.
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`On or around April 2022, Plaintiffs learned that Defendant sold Products that had
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`been modified in breach of at least Section 7(f) of the Agreement. Specifically, Defendant sold
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`Product bearing a label from which the lot number and expiration date of the Product had been
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`removed by Defendant.
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`26.
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`On or around April 2022, Plaintiffs further learned that Defendant did not maintain
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`and stock adequate supply of certain Products in breach of Section 7(c) of the Agreement.
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`Specifically, Defendant listed numerous Products as “out of stock” or “backordered” on its
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`website, although supply of those Products was available to Defendant from Nutramax.
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`27.
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`On May 5, 2022, upon learning of Defendant’s breaches, a representative of
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`Nutramax sent Defendant a letter providing Defendant with written notice that Nutramax was
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`terminating the Agreement effective immediately pursuant to Section 9(a) of the Agreement, and
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`prohibiting Defendant from any further sales of Products. A true and accurate copy of the May 5,
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`2022 letter, including all exhibits, is attached hereto as Exhibit A.
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`28.
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`On information and belief, Defendant has also shipped Nutramax Products to
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`consumers in damaged packaging.
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`COUNT I – TRADEMARK INFRINGEMENT (15 U.S.C. § 1125)
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`29.
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`Plaintiff Nutramax Labs restates and re-alleges the preceding paragraphs as if fully
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`set forth in this Count.
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`30.
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`As described above, Nutramax Labs is the owner of the Licensed IP described in
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`the Agreement and the famous Nutramax Marks, which are licensed for use by Nutramax.
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`6
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 7 of 10
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`31.
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`Under the Agreement, Nutramax granted Defendant a limited license to use the
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`Licensed IP, including the Nutramax Marks owned by Nutramax Labs, for the sole purpose of
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`advertising and promoting the sale of Products within the United States of America to End-Users,
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`subject to restrictions and limitations described in the Agreement.
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`32.
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`Defendant’s activities described above, including Defendant’s act of removing the
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`expiration date and lot number from the Product and selling the Product without that information,
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`such reflecting a willful violation of the Lanham Act, 15 U.S.C. § 1125, were unauthorized by
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`Plaintiff Nutramax Labs and the terms of the Agreement due to the modification of the Product’s
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`condition, which was materially different from that authorized for distribution.
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`33.
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`Defendant’s unauthorized activities and its use of the Nutramax Marks took place
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`in interstate commerce.
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`34.
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`Defendant’s activities and use of the Nutramax Marks are likely to cause injury to
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`Plaintiff Nutramax Labs.
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`35.
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`Defendant’s unauthorized activities constitute willful violations of the Lanham Act,
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`15 U.S.C. § 1125.
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`36.
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`As a direct and proximate result of Defendant’s unauthorized and unlawful acts,
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`Plaintiff Nutramax Labs has suffered and will continue to suffer damages in an amount that is not
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`presently ascertainable but will be established at trial, but are alleged to include without limitation
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`Nutramax Labs’ attorneys’ fees and costs incurred in connection with of this lawsuit.
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`COUNT II – BREACH OF CONTRACT
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`37.
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`Plaintiff Nutramax restates and re-alleges the preceding paragraphs as if fully set
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`forth in this Count.
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`7
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 8 of 10
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`38.
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`As stated above, on August 17, 2015, Nutramax and Defendant entered into the
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`Agreement for Defendant’s appointment as an authorized reseller of the Products.
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`39.
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`The Agreement, including all schedules attached thereto, is a valid and enforceable
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`contract governed by the law of the State of South Carolina.
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`40.
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`Under the Agreement, Nutramax granted Defendant a limited license to the
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`Licensed IP, including the Nutramax Marks, in connection with certain Products and subject to
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`certain restrictions and limitations specified therein.
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`41.
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`Under the Agreement, Defendant agreed to undertake certain obligations with
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`respect to advertising, displaying, promoting, and selling the Products. Specifically, under the
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`Agreement, Defendant agreed to “maintain and stock: (i) an adequate supply of the Products to
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`satisfy the demand of its customers and (ii) a representative sample of all Products;” and “not
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`adulterate, mislabel or tamper with any Product.”
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`42.
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`Further, under the Agreement, Defendant agreed to not use the Licensed IP in a
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`manner that disparages Nutramax or the Nutramax Products, blurs, dilutes or otherwise diminishes
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`the Licensed IP, or portrays Nutramax or the Products in a false, competitively adverse or poor
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`light.
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`43.
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`As described above, in breach of Defendant’s obligations under the Agreement,
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`Defendant sold Product with a label that had been modified by the removal of the lot number and
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`expiration date of the Product. See “Exhibit A” to Exhibit A attached hereto.
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`44.
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`Defendant also breached its obligations under the Agreement by failing to maintain
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`and stock adequate supply of certain Products, although supply of those Products was available to
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`Defendant, and by shipping Product bearing the Licensed IP and Nutramax Marks in damaged
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`packaging.
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`8
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 9 of 10
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`45.
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`46.
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`Defendant’s activities constitute a material breach of the Agreement.
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`Defendant’s breach of its obligations has directly harmed Nutramax in amounts to
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`be proven at trial, but are alleged to include without limitation actual damages, liquidated damages,
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`damage to Nutramax’s business and its goodwill and reputation, disgorgement, and, pursuant to
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`Section 18 of the Agreement, Nutramax’s attorneys’ fees and costs incurred in connection with of
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`this lawsuit.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully request judgment against Defendant as follows:
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`1.
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`Judgment against Defendant under Counts I and II in an amount in excess of
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`$75,000.00, the exact amount to be determined at trial;
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`2.
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`Enjoining Defendant from further advertising, promoting, displaying, or selling
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`Nutramax Products, or using the Licensed IP or Nutramax Marks in connection with the same;
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`3.
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`4.
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`5.
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`6.
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`Disgorgement of Defendant’s profits;
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`Plaintiffs’ lost sales;
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`Attorney’s fees, interest, and costs;
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`Awarding Plaintiffs both pre-judgment and post-judgment interest on each and
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`every damage award; and
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`7.
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`All other relief as the Court may deem just and equitable.
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`JURY DEMAND
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`Plaintiffs Nutramax Laboratories, Inc. and Nutramax Laboratories Veterinary Sciences,
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`Inc. hereby request a trial by jury on all issues and claims so triable.
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`0:22-cv-02317-MGL Date Filed 07/20/22 Entry Number 1 Page 10 of 10
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`July 19, 2022
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`Respectfully submitted,
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`HAYNSWORTH SINKLER BOYD, P.A.
`
`By: s/Steve A. Matthews
`Steve A. Matthews
`Federal ID No. 5119
`smatthews@hsblawfirm.com
`1201 Main Street (29201-3226)
`P.O. Box 11889 (29211-1889)
`Columbia, South Carolina
`803.540.7827 (Telephone)
`803.765.1243 (Facsimile)
`
`Andrew D. Dorisio (pro hac vice motion to be
`submitted)
`C. Anne Stewart (pro hac vice motion to be
`submitted)
`DICKINSON WRIGHT PLLC
`300 W. Vine Street, Suite 1700
`Lexington, KY 40507
`T: 859-899-8700
`F: 844-670-6009
`E-mail: adorisio@dickinsonwright.com
`astewart@dickinsonwright.com
`
`Counsel for Plaintiffs Nutramax Laboratories, Inc.
`and Nutramax Laboratories Veterinary Sciences,
`Inc.
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`10
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