Two competing dietary supplement companies have filed dueling trademark infringement lawsuits against each other in Connecticut and Florida.
Two months after an attorney for the Greenwich-based Peak Wellness Biopharma put Florida-based Peak Wellness Nutrition on notice that it intended to sue if PWN did not cease using its mark, PWN filed its own lawsuit in Florida in response looking to undercut PWB’s trademark.
In its Nov. 9 lawsuit filed in U.S. District Court for the Southern District of Florida, PWN seeks declaratory judgment that its mark does not infringe PWB’s.
PWN claims PWB abandoned its mark in 2011 and did not use it again until 2016. PWN also claims its Connecticut competitor mislead the U.S. Patent and Trademark Office in October 2016 when it filed a declaration of incontestability.
“When PWB submitted the Section 15 affidavit, its statement that PWB had continuously used the Peak Wellness Biopharma mark in commerce for five consecutive years after the (October 2010) date of registration was false, and PWB knew its declaration was false,” according to the lawsuit.
PWB’s abandonment of the mark in 2011 arose from assigning all rights to a third party for a dietary or nutritional product promoted by PWB under the mark MYO-T12, according to the Florida lawsuit.
PWN claims it began using the Peak Wellness Nutrition mark in 2013, two years after PWB abandoned its mark. PWN claims that means its rights “pre-date any valid rights PWB may have in the Peak Wellness Biopharma mark.”
In a federal lawsuit filed Tuesday in U.S. District Court in New Haven, PWB accuses PWN of trademark infringement, unfair competition and violating the Connecticut Unfair Trade Practices Act.
The Connecticut lawsuit claims PWN is using the infringing mark to promote the sale of its dietary supplements after receiving complaints from people who believed they were purchasing PWB’s supplements.
“The plaintiff regularly receives complaints from consumers who believe that they purchased products from the plaintiff and who claim the defendant charged them money for dietary supplements, but failed to deliver such supplements or refund money for such supplements,” the Connecticut lawsuit states.
The PWB lawsuit seeks a ruling that it owns all rights, titles and interest to its marks. It also seeks to enjoin PWN from continuing to use the infringing mark, and prejudgment and post-judgment interest and attorney fees.
PWB’s attorney, Jonathan Shapiro of Shapiro Law Offices in Middletown, said Thursday: “We are working toward a resolution, whether that will happen or not I do not know. My client has a trademark he values and he is seeking to protect that.” He did not elaborate.
PWN is represented by Irene Motles, of Maynard, Cooper & Gale in Birmingham, Alabama. Motles declined to comment Thursday.
PWB also owns rehabilitative and treatment centers in Greenwich, Connecticut, and Beverly Hills, California, whose clientele includes celebrities and professional athletes.