BAKER BOTTS LLI.’
`
`February 27, 2006
`
`flLEfl*
`
`Ms_ Elizabeth
`
`Dunn
`
`Trademark Trial & Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 223131451
`
`200l ROS
`DALLAS, TE
`
`TEl +l 2l4.953.é500
`FAX +l 2l4.953.b503
`www.bokerbo11s.com
`
`HOUSTON
`LONDON
`MOSCOW
`NEW YORK
`RIYADH
`WASHINGTON
`
`Priscilla L Dunckel
`TEL
`+1 214.953.6618
`FAX +1 214.661.4899
`
`prisciIla.dunckel@bakerbotts.com
`
`Re:
`
`'
`
`Poly-Labs Pharma Inc. v. Dennison, Stan
`Opposition No. 91166682
`Our File: 076654.0lO4
`
`Dear Ms. Dunn:
`
`Pursuant to the Order dated February 19, 2006 I have enclosed several key
`pleadings in the related federal litigation styled Poly-Labs Pharma, Inc. v. Stan G. Dennison and
`Nature ’s Treat, L.L. C. (3:05-CB-1082-P).
`
`The enclosures are as follows:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`Plaintiffs Original Complaint (5-26-2005)
`
`Defendant Nature’s Treat, L.L.C.’s Original Answer and Counterclaim (6-
`28-2005)
`
`Plaintiffs First Amended Complaint (8-4-2005)
`
`Defendant Nature’s Treat, L.L.C.’s Answer to Plaintiffs First Amended
`Complaint (8-1 8-2005)
`
`Defendant George Stanley Dennison’s Answer
`Amended Complaint (9-27-2005)
`
`to Plaintiffs First
`
`Defendant Nature’s Treat, L.L.C.’s First Amended Counterclaims and
`Third-Party Claims (9-29-2005)
`'
`
`Counter Defendant Poly-Labs Pharma, Inc.’s Answer to Nature’s Treat
`L.L.C.’s First Amended Counter Claims and Third-Party Claims
`
`Third Party Defendant Gary Krahmer’s'Answer to Nature’s Treat L.L.C.’s
`First Amended counter Claims and Third-Party Claims
`/—"“:—""":“"":_"‘_‘_:‘—\
`
`I||||ll|l|||lllllllllllllll|||||||||||||||||lll|||
`
`02-27-2006
`
`u.s. Patent 3. TMOfclTM Mail Rep! 0:. #30
`
`DAL01 :895065.1
`
`

`
`BAKER BOTTS
`
`|
`
`V
`
`y
`
`I
`
`,
`
`Ms. Elizabeth A. Dunn .
`
`’
`
`- 2 -
`
`February 27, 2006
`
`We have provided you with the same documents as we did in the related
`Opposition proceeding number 91166685.
`If you find later that you will need copies of key
`pleadings in the pending state litigation, please let me know.
`
`Very truly yours,
`
`Priscilla L. Dunckel
`
`PLD:ckp
`Enclosures
`
`cc:
`
`t __ Matthew Booth (w/o encls.)
`Lawrence Fleishman (w/o encls.)
`
`DAL01:895065.l
`
`

`
`__
`
`..- 06/10/2005 15:29 FAX 405 235’ 1,995
`
`ngmucx 3. BRIGGS
`
`004
`
`
`
`U.S. Dl5TRiC'l' COURT
`NORTHERN DISTRICT OF TEXAS
`
`FILED
`
`
`
`
`
`UNITED STATES DISTRICT COUR
`NORTHERN DISTRICT OF TEXAS
` CLERK, u.s. DISTRICT couar
`DALLAS DIVISION
`
`By
`
` II: ut
`
`
`
`CIVII ACIIOII N0. _e_v_ I
`
`
`
`PlaintiffPo1y-Labs Pharma, Inc., a Delaware
`Corporation
`
`Plaintiff,
`
`V.
`Stan G. Dennison and Nature’s Treat, L.L.C.,
`an Oklahoma Limited Liability Company,
`
`
`
`Defendants.
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`Nature of the Action
`
`1.
`
`This is an action for injunctive relief, damages and other reliefbased on Defendants’
`
`infiingement of Plaintiff’s trademarks, unfair competition, internet piracy and injury to business
`
`reputation in connection with Defendants’ advertising and sale of goods in violation of federal
`
`law and the law of the State of Texas.
`
`Parties
`
`2.
`
`Plaintiff Po1y~Labs Pharma, Inc. is a Delaware corporation whose principal office is at
`
`County Road 211 Gainesville, Texas 76240-0888.
`
`3.
`
`Defendant Stan G. Dennison (“Dennison”) is a natural person who resides at 1080
`
`Hanks Trail, Woodward, Oklahoma 7380!. Mr. Dennison may be served at this address or at
`
`his place of business at 1222 8"'iStreet Woodward, Oklahoma 73801.
`
`4.
`
`Defendant Nature’s Treat, L.L.C. (“Nature’s Treat") is an Oklahoma Limited Liability
`
`Company. whose principal office is at 1222 8"‘ Street Woodward, Oklahoma 73801 and can be
`
`served by serving its registered agent for service, Gary W. Derrick at 100 North Broadway 20"‘
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`Page 1 of 7
`
`

`
`"06/10/2005 16230 FAX 405 235 1995
`
`DERRICK 3. BRIGGS
`
`005
`
`Floor Oklahoma City, Oklahoma 73102 or its member/manager Stan G. Dennison at his home or
`
`the business address in paragraph 3.
`
`Jurisdiction and Venue
`
`5.
`
`This Court has subject matter jurisdiction because it is an action. for federal trademark
`
`infiingement and unfair competition under 15 U.S.C. §§1ll4 and 1125.
`
`This Court has
`
`supplemental” jurisdiction over the state law claims herein because they involve use of the same
`
`marks and are so related to the federal claims that they form part of the same case or controversy
`
`and are derived from a common nucleus of operative facts.
`
`Factual Background
`
`6.
`
`Plaintifi‘ develops, manufactures and sells organic, nutritional supplements to customers
`
`throughout the United States.
`
`7.
`
`Plaintiff is the sole owner of the following tmdernarks: NATURE’S TREAT, CI'I‘RI-
`
`MATE, NATURALLY HEALTI-IIER LIFESTYLE, ENERGY PLUS, SLIMBOLIC, STA-
`
`YOUNG, MVP, BIO-FUEL, RESTORATION, BAIO-TREAT, CARDIO-TREAT, HOPE and
`
`STA-SOUND. NATURE’S TREAT, CITRI-MATE and NATURALLY HEALTHIER
`
`LIFESTYLE are registered by Plaintifi on the principal register of the United States Patent
`
`Office. Plaintiffs registered marks are entitled to treatment under 15 U.S.C § 1115.
`
`8.
`
`Plaintiff uses these marks to advertise and sell organic, nutritional supplements
`
`throughout the country.
`
`9.
`
`Defendants sell organic, nutritional supplements throughout the United States. On
`
`information and belief, Defendants advertise and sell their products through the internet and
`
`direct mail to distributors, retailers and consumers.
`
`l0.
`
`Defendants uses or has used the following marks to advertise and sell its goods:
`
`PLAlNTIFF’S ORIGINAL COMPLAINT
`
`Page 2 of 7
`
`

`
`~UU/1U/Z005 18:30 FAX 405 235 1995
`
`DERRICK s BRIGGS
`
`003
`
`NATURE'S TREAT, CITRI-MATE, NATURALLY HEALTI-IIER LIFESTYLE, ENERGY
`
`PLUS, SLIMBOLIC, STA-YOUNG, MVP, BIO-FUEL, RESTORATION, BIO-TREAT,
`
`CARDIO-TREAT, HOPE and STA-SOUND. The Defendant has registered and used
`
`NATURESTREAT as a domain name.
`
`In addition, Defendants have recently started using the
`
`mark STA-NATURAL to advertise and sell its products.
`
`1 1.
`
`In the past, Defendants have simply used counterfeits ofPlaintiff’: marks. Recently, in
`
`using the foregoing marks, Defendants have obliterated the words NATURE’S TREAT on
`
`Plaintiffs’ distinctive labels and substituted STA-NATURAL.
`
`12.
`
`Defendants advertise and sell to the same type of customer as Plaintiff and Defendants
`
`conduct business in substantially the same trade channels as Plaintiff.
`
`First Claim for Relief
`
`Federal Trademark Infringement
`
`13.
`
`Plaintiff incorporates by reference the statements and allegations in paragraphs 1
`
`through 12.
`
`14.
`
`Defendants’ use in commerce ofthe marks NATURE'S TREAT, CITRI-MATE and
`
`NATURALLYPHEALTHIER LIFESTYLE is likely to cause confusion, mistake or deceive as to
`
`the affiliation, connection or association of Defendants with Plaintiff or as to the origin,
`
`sponsorship or approval ofDefendants goods or commercial activities by Plaintiff and is an
`
`infringement of'P1aintif.t’s registered an in violation of 15 U.S.C. §1 1 14.
`
`I5.
`
`Defendants’ acts of infringement with respect to this mark have caused, and will
`
`continue to cause Plaintiff to suffer damages. On information and belief, Defendants have made
`
`profits by using this mark..
`
`16.
`
`Defendants’ acts of infringement have caused and will continue to cause immediate and
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`Page 3 of 7
`
`

`
`~06/10/2005 15:30 FAX 405 235 1995
`
`DERRICK & BRIGGS
`
`[2100 7
`
`irreparable harm to Plaintiff to which there is no adequate remedy at law and for which Plaintiff
`
`in entitled to injunctive relief
`
`Second Claim for Relief
`
`Federal Unfair Competition
`
`17.
`
`Plaintiff incorporates by reference the statements and allegations in paragraphs 1
`
`through 16.
`
`18.
`
`Defendants’ use in commerce, in connection with its goods, of the marks NATURE’S
`
`TREAT, CITRLMATE, NATURALLY HEALTHIER LIFESTYLE, ENERGY PLUS,
`
`SLIMBOLIC, STA-YOUNG, MVP, BIO-FUEL, RESTORATION, BIO-TREAT, CARDIO-
`
`TREAT, HOPE, STA-SOUND, STA-NATURAL and NATURESTREAT and the disttibution of
`
`Defendants’ Sta-Natural Product Catalogue, which except for minor changes, is the same and
`
`presents a confusingly similar overall image as the Nature's Treat Product Catalogue are likely to
`
`cause contusion, mistake or deceive as to the affiliation, connection or association of Defendants
`
`with Plaintiff or as to the origin, sponsorship or approval of Defendants goods or commercial
`
`acfivities by Plaintiff and is a violation of 15 U.S.C. I125(a).
`
`19.
`
`Defendants’ acts, complained of in this claim, with respect to these marks and said
`
`catalogue have caused, and will continue to cause Plaintiffto suffer damages.
`
`.On information
`
`and belief, Defendants have made profits by using these marks and the complained of catalogue.
`20.
`By reason ofDefendant's conduct, Defendant has caused, and unless enjoined by the
`
`Court, will continue to cause immediate and irreparable harm to Plaintiff to which there is no
`
`adequate remedy at law, and for which Plaintiff is entitled to injunctive relief.
`
`Third Claim for Relief
`
`Federal Cyber-piracy
`
`21.
`
`Plaintiff incorporates by reference the statements and allegations in paragraphs 1
`
`PLAlNTlFF’S ORIGINAL COMPLAINT
`
`Page 4 of 7
`
`

`
`. uo/.Lu/zuuo 15:31 FAX 405 2:55 1995
`
`DERRICK s. BRIGGS
`
`003
`
`through 20.
`
`22.
`
`Defendants have used and registered and are the registrants of the domain name
`
`NATURESTREAT to advertise their goods on the internet. Defendants did so knowing that
`
`NATURE'S TREAT was a registered mark owned by Plaintiff and with a bad faith intent to
`
`profit from that mark and such registration and use are a violation of 15 U.S.C. §l l25(d).
`
`23.
`
`Defendants’ acts of infringement with respect to this mark have caused, and will
`
`continue to cause Plaintiff to suffer damages. On information and belief‘, Defendants have made
`
`profits by using this mark..
`
`24.
`
`By reason of De-fendant’s conduct, Defendant has caused, and unless enjoined by the
`
`Court, will continue to cause immediate and irreparable harm to Plaintiffto which there is no
`
`adequate remedy at law, and for which Plaintiff is entitled to injunctive relief.
`
`Fourth Claim for Relief
`
`State Unfair Competition
`
`25.
`
`Plaintiff incorporates by reference the statements and allegations in paragraphs 1
`
`through 24.
`
`26.
`
`Defendants’ use of the marks on their products and use of the catalogue complained of
`
`above creates a false impression as to the nature, source, origin and quality of Defendants’
`
`goods. On information and belief, Defendants’ goods are of a lower quality than those of
`
`Plaintiff.
`
`27.
`
`Plaintiff has no control over the nature and quality ofDefendants’ goods and any
`
`deficiencies in Defendants’ goods will reflect adversely on Plaintifi‘. Defendant has hampered
`
`the efforts of Plaintiff to continue to protect Plaintiffs outstanding reputation for high quality.
`
`28.
`
`Defendants’ use of the marks prevents Plaintiff from selling its own products and/or
`
`obtain a share of profits so as to reap a benefit fiom the goodwill Plaintiff has obtained through
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`Page 5 of 7
`
`

`
`. UUI .l.U/ suuu 1.0:!!!
`
`rAA ‘IUD Z-JD 1.890
`
`DERRICK 3: BRIGGS
`
`002
`
`P1aintifi"s own work, time, and investments.
`
`29.
`
`By reason of Defendant’s conduct, Plaintiff has suffered and will continue to suffer
`
`damages to its business profits, reputation, and goodwill.
`
`30.
`
`By reason of Defendant’s conduct, Defendant has caused, and unless enjoined by the
`
`Court, will continue to cause immediate and irreparable harm to Plaintiff to which there is no
`
`adequate remedy at law, and for which Plaintiff is entitled to injunctive relief.
`
`Fifth Claim for Relief
`
`State Injury to a Business Reputation
`
`31-
`
`Plaintiff incorporates by reference the statements and allegations in paragraphs 1
`
`through 30.
`
`32.
`
`The acts complained of above are likely to injure Plaintiff’s business reputation and is a
`
`violation of Tex. Bus. & Com. Code §l6.29. Plaintiffs request an injunction to prevent such
`
`acts.
`
`Plaintiffrespectfully requests the Court to enter a final judgment in its favor against
`
`Prayer for Relief
`
`Defendant as follows:
`
`C
`
`1.
`
`That the Court enter a permanent injunction enjoining and restraining Defendants and
`
`their respective agents, parent companies or entities, servants, employees, successors,
`
`V
`
`and assigns, and all other persons acting in concert or conspiracy with Defendants,
`
`which are affiliated with Defendant, or either of them, from engaging in the
`
`infringing, unfair and/or damaging acts complained of above.
`
`2.
`
`That the Court issue an Order requiring Defendants to deliver for destruction all
`
`offending materials under its possession, custody or control and to file with the Court
`
`and serve on Plaintiff within thirty (30) days after entry of the injunction a report, in
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`Page 6 of 7
`
`

`
`. uts/1u/2005 16:47 FAX 405 235 1995
`
`DERRICK & BRIGGS
`
`003
`
`writing, under oath, setting forth in detail the manner and fonn in which Defendants
`
`have complied with the injunction.
`
`3.
`
`That the Court require an accounting of all sales of goods and services and the
`
`corresponding profits originating from use of infringing marks and unfair methods
`
`used by Defendants.
`
`4.
`
`That the Court award Plaintiff such monetary damages as may be required and
`
`allowed by law.
`
`5.
`
`That the Court further award Plaintiff its costs of suit and attorneys fees as incurred
`
`or expended.
`
`6.
`
`That the Court grant Plaintiff such other relief as it deems proper.
`
`Date: 25 May 2005
`
`Res ectfully mitted
`
`'
`
`Matthew J. Booth
`Texas Bar No. 02648300
`
`Matthew J. Booth & Associates, PLLC
`P.O. Box 50010
`
`Austin, Texas 78763
`Tel: (512) 474-8488
`Fax: (512) 474-7996
`matthew.booth@boothlaw.com
`
`Lawrence 1. Fleishman
`
`Texas Bar No. 07120500
`
`Browning & Fleishman, P.C.
`P.O. Box 187
`
`Emiis, TX 75120
`(972) 878-9100
`(972) 878-9700 [Facsimile]
`fleishman@worldnet.att.net
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`Page 7 of 7
`
`

`
`‘~ U0/10/2005 15:29 FAX 405 235 1995
`
`DERRICK s; BRIGGS
`
`ooz
`
`mxo 440 (Rev, 8/0)) Summon‘: in a civil Action
`
`UNITED STATES DISTRICT COURT
`
`
`
`Norther“ Texas District of
`
`
`
`Poly-Labs Pharma, Inc., A Delaware Corporation '
`
`V.
`
`SUMIMONS IN A CIVIL CASE
`
`8;£:‘;:i:°£;..“£;§;’if?;££i:"§'é2‘,L’;;kf" an
`
`30 5 c v 10 3 2 - 1»
`
`TO: (Name and address ofbcfcndant)
`
`Gary W. Derrick
`Registered Agent for Service for
`Nature's Treat, L.L.G.
`100 North Broadway 20th Floor
`Oklahoma City, Oklahoma 73102
`
`YOU ARE HEREBY SUMMONED and required to serve on PLA]NTIFF’S ATTORNEY (name and ndduss)
`
`Matthew J. Booth
`Matthew J. Booth & Associates, PLLC
`1=.o. Box 50010
`Austin, Texas 78763 M
`
`days afler service
`20
`an answer to the complaint which is served on you with this summons, within
`of this summons on you, exclusive of the day of service. Ifyou fail to do so, judgment by default will be taken against you
`for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed with the
`Clerk of this Court within a reasonable period of time after service.
`
`i
`
`~CLEii1£ 05 COURT
`f c7®_
`
`CLERK
`
`(By) DEPUTY CLERK
`
`WW 3 5 M5
`
`DATE
`
`\
`
`

`
` 29 FAX 4os zss 1,995
`
`DERRICK 8: BRIGGS
`
`_
`
`003
`
`MO 440 (Rev. 8/0!) Summons in a Civil Action
`
`RETURN OF SERVICE
`DATE
`
`
`
`Service ofthe Summons and complaint was made by me‘"
`
`NAME or senven (PRINT) I
`
`..".!-IE
`
`Check one box below to indicate a roriate method - service
`
`El Served personally upon the defendant. Place where sewed:
`
` CI Lefi copies theteofat the defendant's dwelling house or usual place of abode with a person of suitable age and
`discretion than residing therein.
`
`
`_
`
`Name ofperson with whom the summons and complaint were left:
`
`ll
`D Returned uuexeeuted:
`
`
`
`
`
`D Other (specify):
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`STATEMENT OF SERVICE FEES
`‘*‘“‘°“
`A
`DECLARATION OF SERVER
`
`‘W
`
`I declare under penalty of perjury under the laws oftlxe United States of America that the foregoing information
`
`contained in the Return of Service and Statement of Service Fees is true and correct.
`
`
`
`Executed on
`Signature afServer
`
` Addren ofS¢rver
`
`
`
`(1) As to who may serve a summons sec Rule 4 of the Federal Rules of Civil Procedure.
`
`

`
`{\
`
`DALLAS DIVISION
`
`
`
`CIVE ACTION NO. 3—O5—CV-1082-P
`
`§ § § § § § § 3
`
`§ § §
`
`POLY-LABS PHARMA, INC.,
`a Delaware Corporation
`
`Plaintiff,
`
`V.
`
`STAN G. DENNISON and
`NATURE’S TREAT, L.L.C.,
`an Oklahoma Limited Liability Company
`
`Defendant.
`
`______________________'.____L_________
`
`I
`
`DEFENDANT NATURE’S TREAT, L.L.C.’s
`ORIGINAL ANSWER AND COUNTERCLAIM
`
`'
`
`ANSWER
`
`Defendant Nature’s Treat, L.L.C. (“Nature’s Treat”) files this answer to Plaintiff Poly-
`Labs Pharma, Inc.’s (“Poly-Labs”) Original Complaint (“Complaint”).
`
`First Defense
`
`Poly-Labs’ Complaint fails to state a cause ofaction upon which reliefmay be granted.
`
`Second Defense
`
`With regard to the specific allegations set forth in Poly-Labs’ Complaint, Nature’s Treat
`
`answers as follows:
`
`1.
`Nature’s Treat admits that Poly-Labs has attempted to assert an action for
`injunctive relief‘, damages and other relief based on Nature’s Treat’s alleged infringement of
`Poly-Labs’ trademarks, unfair competition, intemet piracy, and injury to business reputation, but
`
`NATURE’S TREATS ORIGINAL ANSWER AND COUNTERCLAIM
`DALDI 28576365
`
`Page I
`
`

`
`Nature’s Treat denies the validity of Poly-Labs’ claims and denies that Poly-Labs is entitled to
`
`the relief requested.
`
`2
`
`2.
`
`Nature’s Treat is without knowledge or information sufficient to form a belief as
`
`to the truth or falsity of the allegations in paragraph 2 of Poly-Labs’ Complaint, and therefore
`
`denies these allegations.
`
`3.
`
`Nature’s Treat admits the allegations in paragraph 3 of Poly-Labs’ Complaint as
`
`to G. Stanley Dennison‘.
`
`4.
`
`5.
`
`Nature’s Treat admits the allegations in paragraph 4 ofPoly-Labs’ Complaint.
`
`Nat11re’s Treat admits the allegation in paragraph 5 that this action purports to
`
`arise under the Trademark Act of 1946, 15 U.S.C. §§11l4 and 1125. Nature’s Treat also admits
`
`the allegation that this Court has supplemental jurisdiction over the state law claims ir1 Poly-
`Labs’ Complaint.
`
`6.
`
`Nature’s Treat’s knowledge of Poly-Labs is as a formulator of nutritional
`
`supplements. Nature’s Treat admits that Gary Krahmer, owner of Poly-Labs, has been a
`
`distributor for Nat11re’s Treat under the name “Doctor’s Plus” and have been paid commissions
`
`on sales since March 18, 2002. Nature’s Treat is without knowledge or information -sufficient to
`
`form a belief as to the truth or falsity of the remaining allegations in paragraph 6 of Poly-Labs’
`
`Complaint, and therefore denies these allegations.
`
`S
`
`7.
`
`Nature’s Treat
`
`admits
`
`that NATURE’S TREAT, CITRI-MATE,
`
`and
`
`NATURALLY HEALTHIER LIFESTYLE are listed on the Patent and Trademark Office
`
` '
`
`Co-Defendant Dennison is improperly named as “Stan G. Dennison” throughout Poly-
`Labs’ Original Complaint. Rather than object to each allegation, Nature’s Treat responded as if
`Poly-Labs properly named G. Stanley Dennison. To the extent that Poly-Labs’ is making
`allegations against “Stan G. Dennison,” Nature’s Treat is without knowledge or information
`sufficient to form a belief as to the truth or f lsity of the allegations and therefore denies the
`allegations.
`’
`
`NATURE’S TREAT’S ORIGINAL ANSWER AND COUNTERCLAIM
`DAIJ01:857636.5
`
`Page 2
`
`

`
`website as registered trademarks, however, Nature’s Treat denies Poly-Labs owns any right to
`
`the NATURE’S TREAT trademark after Poly-Labs’ owner, Gary Krahmer, assigned all
`
`membership interests to Nature’s Treat L.L.C. named Defendant G. Stanley Dennison and Laura
`
`Dennison on September 1, 1999. The associated business and goodwill remained with Nature’s
`
`Treat L.L.C. as a continuing entity. Nature’s Treat is without knowledge or information
`
`sufficient to form a belief as to the truth or falsity of the remaining allegations in paragraph 7 of
`Poly-Labs’ Complaint, and therefore denies these allegations.
`
`8.
`
`9.
`
`Nature’s Treat denies the allegations in paragraph 8 ofPoly-Labs’ Complaint.
`
`Nature’s Treat admits that it sells nutritional supplements throughout the United
`
`States, and advertises and sells its products through the intemet and direct mail to its distributors
`
`and to consumers on behalf of its distributors. Nature’s Treat denies the remaining allegations in
`
`paragraph 9 of Poly-Labs’ Complaint.
`IO.
`Nature’s Treat admits that it registered its corporate. name in good faith as an
`
`internet domain name and uses its corporate name to do business. Nature’s Treat admits that it
`
`has used “Citrimate,” “Naturally Healthier Lifestyle,” and “Bio-Treat” in the past but denies it is
`using such terms now. Nature’s Treat admits that it currently sells products identified as
`
`ENERGY PLUS, SLIMBOLIC, STA-YOUNG, MVP, BIO-FUEL, RESTORATION, CARDIO-
`
`TREAT, HOPE STA—SOUND and STA-NATURAL. Nature’s Treat denies the remaining
`
`allegations in paragraph 10 of Poly-Labs’ Complaint.
`
`11.
`
`Nature’s Treat admits it has recently replaced “NATURE’S TREAT” with “STA-
`
`NATURAL” on the product
`
`labels created by Nature’s Treat, and denies the remaining
`
`allegations in paragraph 11 of Poly-Labs’ Complaint.
`
`NATURE’S TREAT’S ORIGINAL ANSWER AND COUNTERCLAIM
`DAb0l 28576365
`
`Page 3
`
`

`
`{K
`
`//...
`
`12.
`
`Nature’s Treat has insufficient information to. admit or deny the allegations in
`
`paragraph 12 of Poly-Labs’ Complaint, and therefore denies them.
`
`13.
`
`Nature’s Treat repeats and realleges its answers to paragraphs 1-12 of Poly-Labs’
`
`Complaint.
`
`14.
`
`15.
`
`Nature’s Treat denies the allegations in paragraph 14 of Poly-Labs’ Complaint.
`
`Nature’s Treat admits it has made profits from the sale of its products, but denies
`
`the remaining allegations in paragraph 15 of Poly-Labs’ Complaint.
`
`16.
`
`l7.
`
`Complaint.
`
`Nature’s Treat denies the allegations in paragraph 16 of Poly-Labs’ Complaint.
`
`Nature’s Treat repeats and realleges its answers to paragraphs 1-16 of Poly-Labs’
`
`18.
`Nature’s Treat admits its Sta-Natural Product Catalog, except for minor changes,
`is the same as its own original Nature’s Treat Product. Catalog, which was created and
`
`exclusively owned by Nature’s Treat and protected by the copyright laws of the United States.
`
`Nature’s Treat specifically denies Poly-Labs made any contributions or has any right to the
`
`Nature’s Treat Catalog that was created solely by employees of Nature’s Treat L.L.C. as works
`
`made for hire. Nature’s Treat denies the remaining allegations in paragraph 18 of Poly-Labs’
`
`Complaint.
`
`19.
`Nature’s Treat admits it has made profits from the sale of its products, but denies
`the remaining allegations in paragraph 19 ofPoly-Labs’ Complaint.
`
`20.
`
`21.
`
`Complaint.
`
`Nature’s Treat denies the allegations in paragraph 20 of Poly-Labs’ Complaint.
`
`Nature’s Treat repeats and realleges its answers to paragraphs 1-20 of Poly-Labs’
`
`NATURE’S TREA'l"S ORIGINAL ANSWER AND COUNTERCLAIM
`DAL01:857636.5
`
`Page 4
`
`

`
`22.
`
`Nature’s Treat admits that it registered its corporate name in good faith as an
`
`intemet domain name and that its products are available for sale on the intemet. Nature’s Treat
`
`denies the remaining allegations in paragraph 22 of Poly-Labs’ Complaint.
`
`23.
`
`Nature’s Treat admits it has made profits from the sale of its products, and denies
`
`the remaining allegations in paragraph 23 ofPoly-Labs’ Complaint.
`
`24.
`
`25.
`
`Complaint.
`
`Nature’s Treat denies the allegations in paragraph 24 of Poly-Labs’ Complaint.
`
`Nature’s Treat repeats and realleges its answers to paragraphs 1-24 of Poly-Labs’
`
`26.
`27.
`
`Nature’s Treat denies the allegations in paragraph 26 ofPoly-Labs’ Complaint.
`Nature’s Treat admits the allegation that Poly-Labs has no control over the nature
`
`and quality of Nature’s Treat’s goods, and denies the remaining allegations in paragraph 27 of
`
`Poly-Labs’ Complaint.
`
`28.
`
`29.
`
`30.
`
`31.
`
`Complaint.
`
`Nature’s Treat denies the allegations in paragraph 28 ofPoly-Labs’ Complaint.
`
`Nature’s Treat denies the allegations in paragraph 29 of Poly-Labs’ Complaint.
`
`Nature’s Treat denies the allegations in paragraph 30 ofPoly-Labs’ Complaint‘.
`
`Nature’s Treat repeats and realleges‘ its answers to paragraphs 1-30 of Poly-Labs’
`
`32.
`
`Nature’s Treat denies the allegations in paragraph 32 of Poly-Labs’ Complaint,
`
`and specifically denies that Poly-Labs is entitled to an injunction or any other relief requested by
`Plaintiff.
`
`Affirmative Defenses
`
`34.
`
`35.
`
`Poly-Labs’ claims are barred by estoppel.
`
`Poly-Labs’ claims are barred by laches.
`
`NA'I'URE’S TREAT’S ORIGINAL ANSWER AND COUNTERCLAIM
`DAD0l:857636.5
`‘
`
`Page 5
`
`

`
`36.
`
`36.
`
`“Poly-Labs’ claims are barred by acquiescence.
`
`The terms ENERGY PLUS alleged by Poly-Labs to be a trademark are merely
`
`descriptive and lack secondary meaning and/or are generic.
`
`37.
`
`The terms NATURALLY HEALTHLER LIFESTYLE registered by Poly-Labs are
`
`generic.
`
`38.
`
`Nature’s Treat is the exclusive owner of the copyrights to the Nature’s Treat and
`
`Sta-Natural Catalogs and all product labels created and used by Nature’s Treat.
`
`39.
`
`40.
`
`Poly-Labs’ claims are barred by payment and release under contract.
`
`“Nature’s Treat acted in good faith at all times during the period in which Poly-
`
`Labs complains.
`
`COUNTERCLAIM
`
`Nature’s Treat L.L.C. hereby submits this Counterclaim against Poly-Labs and its
`representative and owner, Gary Krahmer, individually (“Krahmer” :
`
`Additional Party
`
`41.
`
`Krahmer is a natural person who resides in Gainesville, Texas. Krahmer may be
`
`served at his place of business at County Road 211, Gainesville, Texas 76240-0888.
`
`Jurisdiction and Venue i
`
`In
`This Court has supplemental jurisdiction over Nature’s Treat’s counterclaim.
`42.
`the alternative, this Court has subject matter jurisdiction based on diversity of
`addition, or
`citizenship because Nature’s Treat is a citizen of Oklahoma and Poly-Labs and Krahmer are
`
`citizens of Texas.
`
`This Court has personal jurisdiction over Poly-Labs, which is located in Texas,
`43.
`does business in Texas and filed this action in this Court. This Court has personal jurisdiction
`
`over Krahrner because he resides and does business in Texas.
`
`NATURE’S TREAT’S ORIGINAL ANSWER AND COUNTERCLAIM
`DAD01:857636.5
`
`Page 6
`
`

`
`As to Poly-Labs, venue is proper in this District pursuant to 28 U.S.C. §139l
`44.
`because Poly-Labs has filed an action here and is subject to personal jursidiction here. As to
`
`Krahmer, venue is proper in this District pursuant to 28 U.S.C. §139l because Poly-Labs and
`Krahmer both reside in Texas.
`
`Relevant Facts
`
`All membership interests in Nature’s Treat L.L.C. were transferred from Poly-Labs’
`
`owner, Gary Krahmer, to Stanley and Laura Dennison on September 1, 1999. Following the
`
`transfer of all right, title and interest to the limited liability company, Poly-Labs formulated
`
`certain products for Nature’s Treat by agreement and was Nature’s Treat’s exclusive source of
`
`certain products until February 21, 2005. During their relationship, Nature’s Treat selectediand
`
`began using many of the trademarks at issue in this action. After the agreement with Poly-Labs
`
`was tenninated, Nature’s Treat developed and ‘began marketing new enhanced products
`
`formulated by an unrelated manufacturer under Nature’s Treat’s trademarks. All invoices were
`
`paid_except for disputed amounts for substandard products shipped by Poly-Labs.
`
`Poly-Labs, by and through its owner, Gary Krahmer, has contacted Nature’s Treat’s
`
`distributors and made untrue allegations about the quality and safety of the Sta-Natural products.
`Nature’s Treat has been advised that Krahmer has informed Nature’s Treat’s distributors and
`
`vendors that Nature’s Treat is shutting down due to financial problems, that Nature’s Treat failed
`
`to fulfill its payment obligations under the terminated agreement, and that Nature’s Treat’s
`
`products are going to be seized. All of these statements are untrue. As a direct result of
`
`Krahmer’s untrue statements, more than twenty (20) Oregon distributors have cancelled orders
`
`ofNature’s Treat’s products and ordered products from Poly-Labs.
`
`Nature’s Treat has also been advised that Krahmer has scheduled a meeting in Oregon,
`
`on July 8, 2005, to which he is inviting Nature’s Treat’s distributors, and has alleged that this
`
`NATURE’S TREAT’S ORIGINAL ANSWER AND COUNTERCLAIM
`DAL0l :857636.5
`
`.
`
`Page 7
`
`

`
`:1/\
`
`J!
`
`lawsuit will be completed by then and Nature’s Treat will no longer be allowed to sell its
`
`products. On information and belief, Krahmer has created a list of Nature’s Treat’s distributors
`
`and is using such information in bad faith for his own personal benefit and for the benefit of
`
`Poly-Labs.
`
`Counterclaim No. 1 - Tortious Interference With Existing Contract
`
`44.
`
`Nature’s Treat has valid contracts with its distributors, including with Mary Ann
`
`Krahmer, Krahmer’s wife.
`
`45.
`
`Poly-Labs and Krahmer willfully and intentionally interfered with those contracts
`
`by making untrue allegations about the quality and safety ofNature’s Treat’s products. Krahmer
`
`also interfered and continues to interfere by making untrue allegations about Nature’s Treat’s
`
`financial stability and the company’s ability to supply its products in the "future.
`
`46.
`
`Poly-Labs and Krahmer’s interference proximately caused more than twenty (20)
`
`Nature’s Treat distributors to cancel orders and threatens to result further cancellations.
`
`47.
`
`As a direct result of Poly-Labs and Krahmer’s interference and the cancelled
`
`orders, Nature’s Treat suffered monetary damages and irreparable damage to its reputation.
`Krahmer’s interference poses the threat of additional monetary damages and damages to the
`
`business reputation of Nature’s Treat.
`
`Counterclaim No. 2 - Business Disparagement
`
`49.
`
`Poly-Labs, by and through Krahmer,
`
`its owner, disparaged Nature’s Treat’s
`
`business by communicating orally to Nature’s Treat’s distributors untrue statements about the
`
`company’s economic interests. Specifically, Krahmer told Nature’s Treat’s distributors that
`
`Nature’s Treat is shutting down due to financial problems, that the company failed to fulfill its
`
`NATURE’S TREATS ORIGINAL ANSWER AND COUNTERCLAIM
`DAI.Dl 18576365
`
`Page 8
`
`

`
`payment obligations under its agreement with Poly-Labs, and that the company’s current
`
`products are going to be seized.
`
`50.
`
`Poly-Labs’ and Krahmer’s statements were false when made because Nature’s
`
`Treat was and continues to be financially sound, all of Nature’s Treat’s accounts with Poly-Labs
`
`are current except for validly disputed amounts for products shipped that did not meet Nature’s
`
`Treat’s specifications, and there is no evidence to suggest that Nature’s-Treat’s products are
`
`going to be seized.
`
`51.
`
`Krahmer’s statements were made with malice because as the owner of Poly-Labs,
`
`Krahmer knew that Nature’s Treat’s account with Poly-Labs was current except for the validly
`
`disputed amounts and had no basis for the statements that Nature’s Treat was having financial
`
`problems or that its products were going to be seized. Krahmer’s statements were made with
`
`malice because he intended for the foregoing statements, along with the other disparaging
`
`statements about Nature’s Treat, to cause Nature’s Treat economic harm by inducing Nature’s
`
`"Treat’s distributors to stop purchasing products from Nature’s Treat and to purchase products
`
`instead from Poly-Labs.
`
`52.
`
`All of the disparaging statements communicated by Krahmer to Nature’s Treat’s
`
`distributors were done without privilege.
`
`53.
`
`Krahmer’s disparaging statements caused a direct pecuniary loss to Nature’s Treat
`
`by inducing more than twenty (20) of Nature’s Treat’s Oregon distributors.to cancel orders of
`
`Nature’s Treat’s products and to purchase instead from Poly-Labs. Krahmer’s disparaging
`
`statements have induced other distributors not to deal with Nature’s Treat.
`
`NA'I‘URE’S TREAT’S ORIGINAL ANSWER AND COUNTERCLAIM
`DALOI :85’/636.5
`
`Page 9
`
`

`
`/\a.\
`
`"‘\
`
`PRAYER FOR RELIEF
`
`WHEREFORE, PREMISES CONSIDERED, Nature’s Treat L.L.C. requests judgment of
`
`the Court that Poly-Labs Pharma, Inc. take nothing by its suit. Nature’s Treat further requests
`
`judgment against Poly-Labs as follows:
`
`1.
`
`That
`
`the Court award Nature’s Treat, L.L.C.
`
`its actual damages,
`
`including
`
`recovery for lost profits and the expense of necessary measures taken to counteract
`
`the
`
`defamatory statements by Poly-Labs;
`
`2.
`
`That the Court enter an award of exemplary damages against Poly-Labs Pharma,
`
`Inc., based on its malice against Nature’s Treat, L.L.C.;
`
`3.
`
`That the Court award Nature’s Treat, L.L.C. its reasonable attorney's fees and
`
`expenses; and
`
`4.
`
`That the Court award Nature’s Treat, L.L.C. all other and further relief to which it
`
`may be justly entitled, whether at law or in equity, including the recovery of costs.
`
`Dated: June 28, 2005
`
`Respectfully submitted,
`
` w.i
`
`Robert W. Kantner
`
`Texas State Bar No. 11093900
`Priscilla L. Dunckel
`
`Texas State Bar No. 007 87403
`Joseph W. Wagner, Jr.
`Texas State Bar No. 24037656
`
`BAKER BOTTS L.L.P.
`2001 Ross Avenue
`
`Dallas, Texas 75201
`214.953.6500
`
`214.953.6503 (Facsimi