throbber
Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 1 of 17
`
`Chad Nydegger (#9964)
`cnydegger@wnlaw.com
`Robyn Phillips (#7425)
`rphillips@wnlaw.com
`Brian N. Platt (#17099)
`bplatt@wnlaw.com
`WORKMAN NYDEGGER
`60 East South Temple Suite 1000
`Salt Lake City, UT 84111
`Telephone: (801) 533-9800
`Facsimile: (801) 328-1707
`
`Attorneys for BetterBody Foods & Nutrition LLC
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`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF UTAH
`
`
`Plaintiff,
`
`
`BETTERBODY FOODS & NUTRITION
`LLC, a Utah limited liability company,
`
`
`
`vs.
`
`OATLY AB, a Swedish corporation, and
`Oatly Inc., a Delaware corporation,
`
` Defendants.
`
`
`
`
`
`
`
`
`Case No: ______________
`
`COMPLAINT FOR FEDERAL
`TRADEMARK INFRINGEMENT,
`UNFAIR COMPETITION, AND
`UNFAIR COMPETITION IN
`VIOLATION OF UTAH CODE ANN.
`§ 13-5a-102
`
`JURY TRIAL DEMANDED
`
`District Judge ___________
`Magistrate Judge ___________
`
`
`

`

`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 2 of 17
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`
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`Plaintiff BetterBody Foods & Nutrition LLC (“Plaintiff” or “BetterBody”) complains and
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`alleges as follows against Defendants Oatly AB and Oatly Inc. (collectively, “Defendants”) as
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`follows:
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`THE NATURE OF THE ACTION
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`1.
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`This action relates to trademark infringement and unfair competition in violation of
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`the laws of the United States and the laws of the State of Utah.
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`2.
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`BetterBody is a local Utah business formed in 2007 with the goal of bringing better
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`food choices to the tables of millions of consumers by using the highest quality ingredients sourced
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`from all over the world to provide healthy, delicious and sustainable foods.
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`3.
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`One of BetterBody’s products is OATSOME® oat milk, a non-dairy milk made
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`from organic oats. BetterBody has registered its OATSOME® trademark with the U.S. Patent and
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`Trademark Office. A copy of BetterBody’s certificate of registration for the OATSOME®
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`trademark is attached hereto as Exhibit A.
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`4.
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`Defendants use the mark “TOTALLY OAT-SOME” on an oat milk product that
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`directly competes with BetterBody’s OATSOME® oat milk, thereby infringing BetterBody’s
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`OATSOME® mark and competing unfairly with it.
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`5.
`
`BetterBody brings this action against Defendants for trademark infringement and
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`unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and unfair
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`competition in violation of Utah Code Ann § 13-5a-102.
`
`THE PARTIES
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`6.
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`Plaintiff BetterBody Foods & Nutrition LLC is a limited liability company
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`organized under the laws of Utah with a principal place of business in Lindon, Utah.
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`2
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 3 of 17
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`7.
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`Upon information and belief, Defendant Oatly AB is a Swedish corporation with a
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`principal place of business in Malmo, Sweden.
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`8.
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`Upon information and belief, Defendant Oatly Inc. is a corporation organized under
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`the laws of Delaware with a principal place of business in New York, New York, and is a
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`subsidiary of and a distribution company for Oatly AB.
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`JURISDICTION AND VENUE
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`9.
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`This Court has subject matter jurisdiction under 15 U.S.C. § 1121 (action arising
`
`under the Lanham Act); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1338(a) (any Act of
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`Congress relating to patents or trademarks); 28 U.S.C. § 1338(b) (action asserting claim of unfair
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`competition joined with a substantial and related claim under the trademark laws); and 28 U.S.C.
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`§ 1367 (supplemental jurisdiction).
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`10.
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`This Court has specific personal jurisdiction over Oatly AB because, on
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`information and belief, it has and continues to infringe BetterBody’s registered OATSOME®
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`trademark in violation of 15 U.S.C. § 1125 in Utah through selling its products bearing its
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`infringing TOTALLY OAT-SOME mark through Oatly Inc., its U.S. distribution company, to
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`residents of the State of Utah and within this District, including at least through selling the products
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`bearing the infringing trademark through Target stores located throughout Utah. Plaintiff’s claims
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`arise from Oatly AB’s sale of such products bearing the infringing trademark. This Court has
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`general personal jurisdiction over Oatly AB because, on information and belief, Oatly AB has
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`constructed a manufacturing plant in Weber County, and in so doing has availed itself of the laws
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`and protections of Utah, including obtaining economic development incentives in the form of post-
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`performance tax credits authorized by the Utah Legislature for the construction and operation of
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 4 of 17
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`the aforementioned manufacturing plant. As such, Oatly AB is essentially at home in the State of
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`Utah and is subject to general personal jurisdiction in this Court.
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`11.
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`This Court has specific personal jurisdiction over Oatly Inc. because, on
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`information and belief, it has and continues to infringe BetterBody’s registered OATSOME®
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`trademark in violation of 15 U.S.C. § 1125 in Utah through selling and distributing Oatly AB’s
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`oat milk products bearing the infringing TOTALLY OAT-SOME mark to residents of the State of
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`Utah and within this District, including at least through selling the products bearing the infringing
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`mark through Target stores located throughout Utah. Plaintiff’s claims arise from the sale and
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`distribution of such products bearing the infringing mark.
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`12.
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`Venue is proper in this District under 28 U.S.C. § 1391(b) because a substantial
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`part of the events giving rise to this claim took place in this District, because BetterBody suffered
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`harm in this District, and because Defendants regularly transact business within this district.
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`BACKGROUND
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`13.
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`In 2007, Stephen Richards founded BetterBody Nutrition & Foods LLC because,
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`coming from a family with a history of diabetes, Mr. Richards had a strong interest in foods that
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`were high quality, delicious, healthier and more nutritious than other food options commonly
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`available on the market at the time. BetterBody’s first product was agave nectar, which is a natural
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`sweetener that has a reduced impact on blood sugar levels than refined cane sugar.
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`14.
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`From agave nectar BetterBody has expanded its product lines to include a number
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`of natural and organic foods, including avocado oil, coconut oil, quinoa, PBfit® (pressed roasted
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`peanuts with 87% less fat and about 1/3 the calories of traditional peanut butter), a variety of
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`dressings and condiments, and the product at issue in this case, OATSOME® oat milk:
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`4
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 5 of 17
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`
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`15.
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`BetterBody began preparations to launch its OATSOME® oat milk in the fall of
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`2018. As part of that preparation, BetterBody brainstormed potential trademarks under which to
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`market its oat milk. One potential mark that it came up with was “OATSOME.”
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`16.
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`However, prior to moving forward with the OATSOME trademark, BetterBody
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`searched the database of registered trademarks maintained by the U.S. Patent and Trademark
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`Office. Its search did not discover any trademark registrations or applications that included
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`“OATSOME” in the mark.
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`17.
`
`BetterBody also researched oat milk products on the market at that time. As part of
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`that research, BetterBody reviewed the packaging of several oat milk products on the market,
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`including Defendants’ oat milk marketed under the brand name “OAT-LY”:
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`5
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 6 of 17
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`18.
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`As seen above, Defendants’ used the mark “THE ORIGINAL OAT-LY!” and/or
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`“OAT-LY” to identify its product to consumers, not “OATSOME.”
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`19.
`
`Satisfied that no parties were using the mark OATSOME or any similar mark to
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`identify its oat milk product, on January 9, 2019, BetterBody filed an intent-to-use application with
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`the U.S. Patent and Trademark Office to register the mark OATSOME for use on “oat milk” and
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`“oat-based milk substitutes” in International Class 029. That application was assigned Serial
`
`Number 88976551 (the “’551 Application”).
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`20.
`
`BetterBody also filed applications to register the OATSOME mark in numerous
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`countries throughout the world, including by way of example the United Kingdom, European
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`Union, China, Australia, and Singapore, as demonstrated in Exhibits B through F, respectively.
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`21.
`
`On May 7, 2019 the U.S. Patent and Trademark Office published the OATSOME
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`mark in the Official Gazette for opposition by any party that viewed BetterBody’s use of the
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`OATSOME mark on oat milk and oat-based milk substitutes as likely to cause confusion with that
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`6
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 7 of 17
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`party’s prior trademark.
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`22.
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`No opposition was filed against the OATSOME mark, and the ’551 Application
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`was allowed on July 2, 2019. With the ’551 Application now allowed, BetterBody continued its
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`preparations to launch its oat milk under the OATSOME brand, including finalizing manufacturing
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`and packaging for the product.
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`23.
`
`Amidst those preparations, on September 27, 2019, BetterBody received a
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`threatening letter from counsel for Oatly AB asserting that it owned the mark TOTALLY
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`OATSOME. A copy of that letter is attached hereto as Exhibit G. In the letter Oatly AB demanded
`
`that “BetterBody immediately take the following action:
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`1. Expressly abandon U.S. Trademark Application Serial No. 88/255,966;
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`2. Expressly abandon or surrender all other OATSOME (or related) trademark
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`applications and registrations globally, including but not limited to trademarks in the
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`European Union, China and International Registrations;
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`3. Agree not to use OATSOME in marketing or on packaging in the future; and
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`4. Undertake to never use or seek registration for any trademarks incorporating the word
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`‘Oat’ and any other letters, phrases or words that form a one-word trademark.”
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`24.
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`Oatly AB’s aggressive letter also included an attachment identifying the following
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`registered marks purportedly owned by Oatly AB: OATLY, OAT-LY, THE ORIGINAL OAT-
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`LY! & design, and OATADO, and applications to register the marks OATSOME, TOTALLY
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`OATSOME, OATFINDER, OATGURT and OATLY.
`
`25.
`
`Given that no use of “OATSOME” by Oatly had turned up during BetterBody’s
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`search of the OATSOME mark prior adopting it, BetterBody was surprised at Oatly AB’s claim
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`7
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 8 of 17
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`to own the trademark TOTALLY OATSOME. BetterBody was also taken aback at Oatly’s
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`overreaching demand that BetterBody “never use or seek registration for any trademarks
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`incorporating the word ‘Oat’ and any other letters, phrases or words that form a one-word
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`trademark” on an oat milk product that is made primarily from oats, particularly given that its only
`
`registered marks (OATLY, OAT-LY, THE ORIGINAL OAT-LY! & design, and OATADO) are
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`not at all similar to OATSOME aside from the generic word “oat” at the beginning.
`
`26.
`
`Upon further investigation taken in response to Oatly AB’s September 29, 2019
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`letter, BetterBody discovered that Oatly AB’s applications to register the marks TOTALLY
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`OATSOME and OATSOME were both filed on September 17, 2019, just days before the
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`September 29 letter to BetterBody.
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`27.
`
`Given that Oatly AB’s applications to register the OATSOME and TOTALLY
`
`OATSOME marks were filed more than nine months after BetterBody’s application, Oatly did not
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`oppose BetterBody’s application to register OATSOME during the publication period, and that
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`Defendants’ packaging in late 2018 did not use any mark containing OATSOME, BetterBody
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`rightfully pressed forward with launching its OATSOME® product in December 2019.
`
`28.
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`In a further effort to intimidate BetterBody, Oatly AB also initiated opposition
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`proceedings against BetterBody’s registrations of the OATSOME mark in both the European
`
`Union and China. Copies of those oppositions are attached hereto as Exhibits H and I, respectively.
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`Notably, neither of those opposition proceedings asserted a prior use of the mark OATSOME or
`
`TOTALLY OATSOME by Oatly AB. Instead, the oppositions were filed based on Oatly AB’s
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`other dissimilar marks that begin with “oat.”
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`29.
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`Apparently unconcerned with BetterBody’s registration of the OATSOME® mark
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`8
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 9 of 17
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`around the world, Oatly AB sent another letter to BetterBody dated June 1, 2020. A copy of that
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`letter is attached as Exhibit G. In that letter Oatly AB asserts that it was using the mark “TOTALLY
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`OATSOME” as seen in the below packaging design since 2016:
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`30.
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`Oatly AB also stated that as of June 1, 2020, it was selling oat milk under the mark
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`“TOTALLY OAT-SOME” at Whole Foods Store, Target, Wegmans and Amazon.com. The
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`product packaging for those oat milk products is shown here:
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`9
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 10 of 17
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`
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`31.
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` Conspicuously absent from Oatly AB’s letter was any assertion that Oatly AB used
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`any mark containing “OATSOME” or “OAT-SOME” continuously from 2016 through June 1,
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`2020. Also absent from Oatly AB’s letter was any assertion that it had used any form of the mark
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`TOTALLY OATSOME or TOTALLY OAT-SOME during the period from the fall of 2018
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`through the filing of BetterBody’s application to register its OATSOME® mark on January 9,
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`2019.
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`32.
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`Given that Oatly AB’s alleged use of TOTALLY OATSOME (as shown below)
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`has a different commercial impression than its current use of the infringing mark TOTALLY OAT-
`
`SOME (also shown below), even if Oatly had used the TOTALLY OATSOME mark prior to
`
`January 9, 2019, Oatly is not entitled to tack its current use of TOTALLY OAT-SOME to any
`
`prior use of TOTALLY OATSOME.
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`10
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 11 of 17
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`33.
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`On information and belief, Defendants adopted the infringing TOTALLY OAT-
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`SOME mark after they had both ceased use of the mark TOTALLY OATSOME, and had actual
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`knowledge of BetterBody’s constructive use of its OATSOME® mark via its application to
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`register that mark with the U.S. Patent and Trademark Office. Despite this knowledge of
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`BetterBody’s adoption and constructive use of the OATSOME® mark, Oatly AB and Oatly Inc.
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`have proceeded to use the unregistered, infringing TOTALLY OAT-SOME mark in willful and
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`wonton violation of BetterBody’s rights in the registered OATSOME® mark.
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`FIRST CAUSE OF ACTION
`Trademark Infringement
`15 U.S.C. § 1114
`
`34.
`
`BetterBody incorporates and realleges each and every allegation in the preceding
`
`paragraphs as if fully set forth herein.
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`35.
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`Section 32(1)(a) of the Lanham Act prohibits any person from using in commerce,
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`without the consent of the registrant, any trademark or any reproduction, counterfeit, copy, or
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`colorable imitation thereof in connection with the marketing, advertising, distribution, or sale of
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`11
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 12 of 17
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`goods or services which is likely to result in confusion, mistake, or deception.
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`36.
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`BetterBody owns the federally-registered OATSOME® trademark for use on “oat
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`milk [and] oat-based milk substitutes.”
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`37.
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`Defendants’ use the mark TOTALLY OAT-SOME trademark in connection with
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`their Oat-ly oat milk products without BetterBody’s consent or authorization. Defendants’ use,
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`including the importation, sale, offer for sale, and/or distribution of Oat-ly oat milk bearing the
`
`TOTALLY OAT-SOME mark in commerce, is likely to cause confusion and mistake in the mind
`
`of the public, leading the public to believe that Defendants’ oat milk products emanate or originate
`
`from BetterBody, or that BetterBody has approved, sponsored, or otherwise associated itself with
`
`Defendants or their Oat-ly oat milk products.
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`38.
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`Defendants’ use, including the importation, sale, offer for sale, and/or distribution
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`of the Oat-ly oat milk products in commerce is likely to cause confusion and mistake in the mind
`
`of the public searching for BetterBody’s OATSOME® products using its OATSOME® trademark,
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`leading the public to believe that Defendants’ products emanate or originate from BetterBody, or
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`that BetterBody has approved, sponsored, or otherwise associated itself with Defendants and its
`
`sale of Oat-ly oat milk products.
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`39.
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`Through the unauthorized use of the TOTALLY OAT-SOME trademark
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`Defendants are unfairly benefiting from and misappropriating BetterBody’s goodwill and
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`reputation. This likely results in substantial and irreparable injury to the public and to BetterBody.
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`40.
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`Defendants have actual and direct knowledge of BetterBody’s prior use,
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`registration, and ownership of the OATSOME® trademark. Defendants’ conduct is willful and
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`reflects Defendants’ bad-faith intent to intimidate BetterBody and stifle legal competition, and/or
`
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`12
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 13 of 17
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`to exploit the goodwill and brand recognition associated with BetterBody and the OATSOME®
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`trademark.
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`41.
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`Defendants’ acts constitute trademark infringement in violation of Section 32 of the
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`Lanham Act.
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`42.
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`Defendants’ acts have caused, and will continue to cause, irreparable injury to
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`BetterBody. BetterBody has no adequate remedy at law and is thus damaged in an amount not yet
`
`determined.
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`SECOND CAUSE OF ACTION
`Unfair Competition, Passing Off, and False Designation of Origin
`15 U.S.C. § 1125(a)
`
`43.
`
`BetterBody incorporates and realleges each and every allegation of the preceding
`
`paragraphs, as if fully set forth herein.
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`44.
`
`Section 43(a) of the Lanham Act prohibits unfair competition by any person using
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`in commerce, “any word, term, name, symbol, or device, or any combination thereof, or any false
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`designation of origin, false or misleading description of fact, or false or misleading representation
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`of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
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`connection, or association of such person with another person, or as to the origin, sponsorship, or
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`approval of his or her goods, services, or commercial activities . . . .”
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`45.
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`Defendants’ use the TOTALLY OAT-SOME trademark in connection with the
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`Oat-ly oat milk products without BetterBody’s consent or authorization. Defendants’ use,
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`including the importation, sale, offer for sale, and/or distribution of the Oat-ly oat milk products
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`in commerce, is likely to cause confusion and mistake in the mind of the public, leading the public
`
`to believe that Defendants’ products emanate or originate from BetterBody, or that BetterBody has
`
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`13
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 14 of 17
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`approved, sponsored, or otherwise associated itself with Defendants or their Oat-ly oat milk
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`products.
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`46.
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`Defendants’ use, including the importation, sale, offer for sale, and/or distribution
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`of the Oat-ly oat milk products bearing the TOTALLY OAT-SOME mark in commerce is likely
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`to cause confusion and mistake in the mind of the public, searching for BetterBody’s oat milk
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`products using its OATSOME® trademark, leading the public to believe that Defendants’ products
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`emanate or originate from BetterBody, or that BetterBody has approved, sponsored, or otherwise
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`associated itself with Defendants or their Oat-ly oat milk products.
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`47.
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`Through their unauthorized use of the TOTALLY OAT-SOME trademark
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`Defendants are unfairly benefiting from and misappropriating BetterBody’s goodwill and
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`reputation. This is likely to result in substantial and irreparable injury to the public and to
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`BetterBody.
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`48.
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`Defendants have actual and direct knowledge of BetterBody’s prior use,
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`registration, and ownership of the OATSOME® trademark. Defendants’ conduct is willful and
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`reflects Defendants’ bad-faith intent to intimidate BetterBody and stifle legal competition, and/or
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`to exploit the goodwill and brand recognition associated with BetterBody and the OATSOME®
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`trademark.
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`49.
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`Defendants’ acts constitute unfair competition, passing off, and false designation
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`of origin infringement in violation of Section 43(a) of the Lanham Act.
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`50.
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`Defendants’ acts have caused, and will continue to cause, irreparable injury to
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`BetterBody and its OATSOME® trademark. BetterBody has no adequate remedy at law and is
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`damaged in an amount not yet determined.
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`14
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 15 of 17
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`THIRD CAUSE OF ACTION
`Unfair Competition
`Utah Code Ann § 13-5a-102
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`BetterBody incorporates and realleges each and every allegation of the preceding
`
`51.
`
`paragraphs, as if fully set forth herein.
`
`52.
`
`Section 13-5a-102(4) of the Utah Code prohibits unlawful, unfair, or fraudulent
`
`activities, including trademark infringement, which lead to a material diminution in value of
`
`intellectual property.
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`53.
`
`Defendants’ use the TOTALLY OAT-SOME trademark in connection with the
`
`Oat-ly oat milk products without BetterBody’s consent or authorization.
`
`54.
`
`Defendants’ use of the TOTALLY OAT-SOME trademark in connection with the
`
`importation, sale, offer for sale, and/or distribution of the Oat-ly oat milk products in commerce is
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`likely to cause confusion and mistake in the mind of the public, leading the public to believe that
`
`Defendants’ Oat-ly oat milk products emanate or originate from BetterBody, or that BetterBody
`
`has approved, sponsored, or otherwise associated itself with Defendants or their Oat-ly oat milk
`
`products.
`
`55.
`
`Defendants’ infringement of the OATSOME® trademark causes a material
`
`diminution of value in BetterBody’s intellectual property in violation of Utah Code Ann § 13-5a-
`
`102.
`
`56.
`
`Defendants’ acts have caused, and will continue to cause, irreparable injury to
`
`BetterBody. BetterBody has no adequate remedy at law and is damaged in an amount not yet
`
`determined.
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`15
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 16 of 17
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`PRAYER FOR RELIEF
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`Wherefore, BetterBody respectfully prays that the Court enter a judgment in its favor and
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`awarding the following relief against Defendants:
`
`A.
`
`A judgment in favor of BetterBody that Defendants have infringed the registered
`
`OATSOME® mark;
`
`B.
`
`A judgment in favor of BetterBody that Defendants’ infringement of the
`
`OATSOME® mark is willful;
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`C.
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`A judgment in favor of BetterBody that Defendants have engaged in unfair
`
`competition, false designation of origin, and passing off in violation of Section 43(a) of the
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`Lanham Act;
`
`D.
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`A judgment in favor of BetterBody that Defendants have engaged in unfair
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`competition in violation of Utah Code Ann § 13-5a-102;
`
`E.
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`An order and judgment enjoining Defendants and their officers, directors,
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`employees, agents, licensees, representatives, affiliates, related companies, servants, successors
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`and assigns, and any and all persons acting in privity or in concert with any of them, from
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`infringing the registered OATSOME® trademark; for the destruction of any infringing articles;
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`and for reasonable funds for corrective advertising to correct Defendants’ misleading association
`
`with BetterBody;
`
`F.
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`A judgment awarding BetterBody damages in an amount to be determined at trial,
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`an accounting of Defendants’ profits, and costs of the action pursuant to 15 U.S.C. § 1117.
`
`G.
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`Any other remedy to which BetterBody may be entitled, including all remedies
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`provided for in 15 U.S.C. § 1117 et seq.;
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`16
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`Case 2:20-cv-00492-JCB Document 2 Filed 07/10/20 Page 17 of 17
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`H.
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`I.
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`A judgment trebling damages pursuant to 15 U.S.C. § 1117;
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`A judgment that this is an exceptional case, pursuant to 15 U.S.C. § 1117, together
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`with an award of Plaintiff’s reasonable attorneys’ fees;
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`J.
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` A judgment awarding BetterBody damages in an amount to be determined at trial,
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`its costs and attorneys’ fees, and punitive damages pursuant to Utah Code Ann § 13-5a-103; and
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`K.
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`Any other relief the Court deems just and proper under all the circumstances.
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`Demand for Trial by Jury
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`BetterBody demands a jury trial on all matters triable to a jury.
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`DATED this 10th day of July, 2020.
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`Respectfully submitted,
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`WORKMAN NYDEGGER
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`By: /s/ Chad E. Nydegger
`CHAD E. NYDEGGER
`ROBYN PHILLIPS
`BRIAN N. PLATT
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`Counsel for Plaintiff BetterBody Foods
`& Nutrition LLC
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`17
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