Humana, Inc. et al v. Preval Group, LLC

Filing 1

COMPLAINT against Preval Group, LLC Filing fee $ 350, receipt number 644-1384536., filed by Humana, Inc., Concentra Health Services, Inc.. (Attachments: # 1 Cover Sheet, # 2 Summons Tendered Preval, # 3 Exhibit A. Chart Identifying Humana's Concentra Federal Regulations, # 4 Exhibit B. Preval Advertisign Logo and Concentra Mark, # 5 Exhibit C. 3/5/12 Rush Limbaugh Commercial & 10/23/11 Courier Journal Advertise, # 6 Exhibit D. Declaration of Sondra Wojciak, # 7 Exhibit E. Concentra Advertising, # 8 Exhibit F. Cease and Desist Letter, # 9 Exhibit G. 11/15/11 Response Letter, # 10 Exhibit H. Preval Website Traffic, # 11 Exhibit I. Keyword Spy Report, # 12 Exhibit J. Internet Advertisement, # 13 Exhibit K. Examples of customers who have mistaken belief, # 14 Exhibit L. Examples, # 15 Exhibit M. Declaration of Nancy Buttyan) (JSS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
HUMANA INC. and
CONCENTRA HEALTH SERVICES, INC.
Plaintiffs

v.
PREVAL GROUP, LLC
Serve: Richard P. Olson
Registered Agent
30 Milk Street
Portland, ME 04101
Defendant

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.: 3-12-cv-123-S
(Electronically Filed)

VERIFIED COMPLAINT
Plaintiffs Humana Inc. and its wholly owned subsidiary Concentra Health Services, Inc.
(“Concentra”), (collectively “Humana”), for their Verified Complaint against Defendant Preval
Group, LLC (“Preval”), state as follows:
INTRODUCTION
1.

Humana brings this action in order to enjoin Preval from continuing its

unauthorized use in commerce of the term or word “Concentra” in connection with its marketing,
sale and offer for sale of homeopathic “medicine” which is purported to ignite memory function
and reactivate a person’s memory. As alleged herein, the use of the term or name “Concentra”
for the memory pill by Preval has caused actual confusion and mistake and has deceived
consumers as to the source, origin, affiliation, connection or association of Humana’s health care
services. Indeed, the use of the term “Concentra” in relation to these memory pills has caused

consumers to believe, in error, that Concentra’s “medicine” is authorized, sponsored, approved,
endorsed, or licensed by Humana, or that the Concentra product is in some way affiliated with
Humana.
2.

This false and misleading information is being presented to the public through the

internet, advertisements on national radio programs (specifically, at least on the Rush Limbaugh
Show) and through print advertising both nationally and locally, in the Courier Journal. As a
result of the actual consumer confusion, Humana is irreparably injured in the form of loss of
faith in its products and damaged goodwill.
THE PARTIES
3.

Humana is a Delaware corporation with its principal place of business in

Louisville, Kentucky. Humana is engaged in the business of providing coordinated health
insurance coverage and related services, serving over 17 million customers.
4.

Concentra Health Services, Inc. is a wholly owned subsidiary of Humana offering

comprehensive services to injured and ill patients and their employers through more than 320
medical centers in 40 states, including in Kentucky, under the Concentra trade name.
5.

Preval Group, LLC is a Maine corporation. Upon information and belief its

principal place of business is in Scarsborough, Maine. According to its own marketing
materials, it is a marketing company that provides an all-in-one, turn-key solution to successful
brand development. Preval is the parent company responsible for the marketing, sale and
offering for sale the Concentra memory pills. Preval is also responsible for overseeing and
maintaining the website www.regainyourmemory.com, which markets and offers for sale
Concentra memory pills.

2

JURISDICTION AND VENUE
6.

This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1332

(civil action arising under the laws of the United States and diversity of citizenship and amount
in controversy exceeds $75,000); and § 1338 (civil action arising under any Act of Congress
relating to trademarks).
7.

This Court has personal jurisdiction over Preval because it regularly transacts

business in this judicial district, and has caused injury to Humana’s property situated within this
judicial district. Preval has advertised its product to consumers in the Western District of
Kentucky through national radio advertisements and through print ads in the Courier Journal and
has received complaints from Kentucky residents. Preval has also targeted Humana and
Humana’s customers in this district through the purchase of key words “concentra healthcare”,
"concentra com” and “www concentra com”.
8.

Venue is appropriate in this Court and in this division pursuant to 28 U.S.C. §

1391 because Preval is subject to personal jurisdiction in this district, a substantial part of the
events giving rise to the claim have occurred in this district, and a substantial part of the
intellectual property rights that are the subject of the action are situated and harmed in this
judicial district.
STATEMENT OF FACTS
A.

Humana’s and Concentra’s Health Related Products.
9.

Humana is one of the nation’s largest health benefits companies. Humana has

expended millions of dollars in research and development in an effort to help consumers make
better healthcare choices and to assist with disease management.
10.

Concentra, Humana’s wholly owned subsidiary, provides occupational health

services, physical therapy services, health and wellness services, primary care services and
3

urgent care services under the brand CONCENTRA®. Concentra currently has 320 medical
centers in 40 states.
11.

CONCENTRA® is a federally registered mark owned by Humana. Humana

owns a number of federal registrations that consist of or include the word CONCENTRA.
Attached as Exhibit A is a chart identifying certain of Humana’s CONCENTRA® federal
registrations, all of which are subsisting and in good standing.
B.

Preval’s Advertising And Marketing Of Its Memory Pills.
12.

Preval advertises its Concentra memory pill on the internet at its website

www.regainyourmemory.com, in national radio advertising and through local advertising.
13.

The Concentra logo is nearly identical to Humana’s Concentra Mark. See Preval

advertising logo and the CONCENTRA Mark, attached as Exhibit B.
14.

Preval has recently advertised the Concentra memory pill on Rush Limbaugh’s

daily radio show and in the Courier Journal. See Transcript of Rush Limbaugh Commercial,
aired on March 5, 2012, an October 23, 2011 Courier Journal advertisement, both attached as
Exhibit C. See also the Declaration of Sondra Wojciak, attached as Exhibit D. In its
advertisements, Preval claims that the Concentra memory pill will stimulate the memory,
concentration and focus and help fight age related memory loss. See Advertising, attached as
Exhibit E.
C.

Preval Refused To Cease And Desist.
15.

In the fall of 2011, Humana learned that Preval was marketing its memory pill as

Concentra. At that time, the advertisements, were, to Humana’s knowledge, contained on
Preval’s website and limited print media in Texas. Humana sent a cease and desist letter in
November of 2011, demanding that Preval cease all use of the term Concentra. See Cease and
Desist letter, attached as Exhibit F.
4

16.

Preval denied any infringement or likelihood of confusion, but claimed it was

winding down its operations with respect to the Concentra memory pill and would be depleting
its inventory and would not continue sales of the product. See November 15, 2011 Response
Letter, attached as Exhibit G.
17.

Humana offered to enter into an agreement with Preval, based upon Preval’s

claim that it was depleting its inventory without intent to continue violation of Humana’s rights,
but Preval refused to enter into such agreement.
D.

After Humana issued its cease and desist letter, Preval Increased its Advertising and
Targeted its Efforts to Increase Confusion
18.

Notwithstanding Humana’s notice, Preval continued to advertise its Concentra

memory pill in Texas.
19.

In fact, after its exchange of correspondence with Humana, Preval did not begin

winding down, but instead broadened its advertising to a national platform. Humana has
discovered that beginning in January, Preval has seen an increase in traffic on its website by
325%. See Website Traffic, attached as Exhibit H.
20.

Upon information and belief, after the exchange of correspondence with Humana,

Preval also purchased keyword advertising for the terms “concentra healthcare”, “concentra
com” and “www concentra com.” These keywords are directly targeted to create an association
with Humana’s Concentra health services and Humana’s website located at www.concentra.com.
Attached as Exhibit I is a report from Keyword Spy showing the purchase of these keywords by
Preval. There is no indication that Preval purchased keywords for “memory” to associate ads for
internet users searching for a memory ad product or “regain your memory” for internet users
searching for Preval’s website at www.regainyourmemory.com. The impact of this purchase of
keywords is that at one time, if a consumer used any of these keywords, the search results would
5

have shown the Concentra memory pill website as the first choice, appearing even above the
search results for Humana’s Concentra website.
21.

Related to the purchase of keywords is the fact that a consumer who goes to the

Courier Journal website and uses a search term of “concentra” will see on the right hand side of
the choices a “Sponsored Link” advertisement for Concentra the memory pill. This sponsored
link is side by side with results leading the consumer to Humana’s Concentra websites. See
Screen Shots of Courier Journal Website, attached as Exhibit J.
E.

Actual Confusion As To The Origins Of The Concentra Memory Pill.
22.

Preval’s unauthorized use in commerce of the mark CONCENTRA® in

connection with its sale and offer for sale of its memory pill, as alleged herein, has caused actual
confusion, and has deceived consumers as to the source, origin, affiliation, connection or
association of Preval’s memory pill. As such, it is likely to cause people to believe, in error, that
Preval’s Concentra memory pill have been authorized, sponsored, approved, endorsed, or
licensed by Humana, or that Preval is in some way affiliated with Humana or the services that
Humana offers under its Marks. Preval’s acts, as alleged herein, constitute Federal trademark
infringement of Humana’s Registrations of the CONCENTRA® Marks in violation of Section
32 of the Federal Lanham Act, 15 U.S.C. § 1114.
23.

After the airing of Preval’s advertisement on the Rush Limbaugh daily show on

March 5, 2012, Humana customers have mistakenly believed that Humana placed advertisements
on the Rush Limbaugh show. Examples of customers who have indicated this mistaken belief
are attached hereto as Exhibit K. As shown on Exhibit K, customers from across the nation and
in Kentucky have called the Humana call center, visited Humana’s website and commented on
the “contact us” link, and posted to Humana’s Twitter and Facebook accounts complaining about

6

Humana’s advertisements on the Rush Limbaugh show and complaining about the
ineffectiveness of Humana’s “memory pill.”
24.

Preval knew that its advertisements on the Rush Limbaugh show would garner

widespread attention at a time when this show and the placement of advertisements thereon were
a national controversy widely discussed in the media.
25.

Since Preval’s ad aired this week on the Rush Limbaugh show, third parties are

posting and blogging information about companies that are continuing to advertise on the Rush
Limbaugh show despite the controversy. These third parties refer to “Concentra’s”
advertisements, and in some instances provide direct links to Humana’s Concentra website and
Humana’s twitter account, even though Preval was the sponsor of the advertisement. See
Examples, attached as Exhibit L.
26.

As set forth in the Declaration of Nancy Buttyan, attached as exhibit M, the

communications received by consumers and the public has been universally negative towards
Concentra and indicates significant harm to the company and its reputation and goodwill. For
example, one customer wrote “As a healthcare executive who oversees organizations that make
literally thousands of referrals for OT/PT a year, I can tell you that so long as you continue to
advertise on Rush Limbaugh's show, your facilities will receive absolutely no referrals from me
or any of the entities I manage. . . . I have made my position known throughout the healthcare
community and I assure you that your continued support of such insanity will negatively impact
your bottom-line.” Id. at ¶ 5.
27.

Ms. Buttyan has also attests that she has personally responded to 30 – 40 emails

from customers and the public from all around the country, including a customer from Kentucky
indicating “I will stop using your services”.

7

28.

Humana has received a complaint from at least one customer in Kentucky who

was confused as to the origins of the Preval product and contacted Humana to complain about
the advertising on the Rush Limbaugh radio show.
29.

By reason of Preval’s actions, Humana has suffered irreparable harm to its

valuable CONCENTRA® Marks and the goodwill associated therewith. Humana has been, and
unless Preval is preliminarily and permanently restrained from its actions, will continue to be
irreparably harmed.
30.

As a direct and proximate result of Preval’s conduct, Humana has suffered and

will continue to suffer damages in an amount to be proved at trial.
COUNT I
FEDERAL TRADEMARK INFRINGEMENT OF A REGISTERED TRADEMARK IN
VIOLATION OF THE LANHAM ACT, 15 U.S.C. § 1114
31.

Humana incorporates by reference paragraphs 1 through 30 as set forth above.

32.

Preval’s use in commerce of the term Concentra in connection with its sale and

offer for sale of its Concentra memory pill, as alleged herein, is likely to and already has caused
confusion, mistake, and has deceived consumers as to the source, origin, affiliation, connection,
or association of Preval’s Concentra memory pill, and is likely to and has caused people to
believe, in error, that Preval’s Concentra memory pill has been authorized, sponsored, approved,
endorsed, or licensed by Humana, or that Preval is in some way affiliated with Humana or the
accommodations and services that Humana offers under its federally registered CONCENTRA®
marks.
33.

Preval’s acts, as alleged herein, constitute infringement of a registered mark in

violation of the Federal Lanham Act, 15 U.S.C. § 1114.

8

34.

By reason of Preval’s actions, Humana has and will continue to suffer irreparable

harm to its valuable trademarks and the goodwill associated therewith. Humana has been, and
unless Preval is preliminarily and permanently restrained from its actions, will continue to be
irreparably harmed.
35.

As a direct and proximate result of Preval’s conduct, Humana has suffered and

will continue to suffer damages in an amount to be proved at trial.

COUNT II
FEDERAL TRADEMARK INFRINGEMENT AND FALSE DESIGNATION OF
ORIGIN, AND UNFAIR COMPETITION IN VIOLATION OF SECTION 43(a) OF THE
LANHAM ACT, 15 U.S.C. § 1125(a)
36.

Humana incorporates by reference paragraphs 1 through 35 as set forth above.

37.

Preval’s use in commerce of the term or word Concentra in connection with the

sale and offer for sale of its Concentra memory pill, as alleged herein, is likely to and has caused
confusion and mistake, and deceived consumers as to the source, origin, affiliation, connection,
or association of Preval’s Concentra memory pill, and is likely to and has caused people to
believe in error that Preval’s Concentra memory pill has been authorized, sponsored, approved,
endorsed, or licensed by Humana, or that Preval is in some way affiliated with Humana or the
accommodations and services that Humana offers under the CONCENTRA® Marks.
38.

Preval’s acts, as alleged herein, constitute infringement, false designation of

origin, and unfair competition in violation of Section 43(a) of the Federal Lanham Act, 15 U.S.C.
§ 1125(a).
39.

By reason of Preval’s actions, Humana has and will continue to suffer irreparable

harm to its valuable trademarks and the goodwill associated therewith. Humana has been, and

9

unless Preval is preliminarily and permanently restrained from its actions, will continue to be
irreparably harmed.
40.

As a direct and proximate result of Preval’s conduct, Humana has suffered and

will continue to suffer damages in an amount to be proved at trial.
COUNT III
STATE COMMON LAW UNFAIR COMPETITION
41.

Humana incorporates by reference paragraphs 1 through 40 as set forth above.

42.

Preval’s use in commerce of the term Concentra in connection with the sale and

offer for sale of its memory pill, as alleged herein, is likely to and has caused confusion and
mistake, and deceived consumers as to the source, origin, affiliation, connection or association of
Preval’s product, and is likely to cause people to believe in error that Preval’s memory pill has
been authorized, sponsored, approved, endorsed or licensed by Humana, or that Preval is in some
way affiliated with Humana or the services that Humana offers under its CONCENTRA®
Marks.
43.

Preval’s acts, as alleged herein, constitute common law unfair competition under

state laws, including the law of Kentucky.
44.

By reason of Preval’s actions, Humana has suffered irreparable harm to its

valuable trademarks and the goodwill associated therewith. Humana has been, and unless Preval
is preliminarily and permanently restrained from its actions, will continue to be irreparably
harmed.
45.

As a direct and proximate result of Preval’s conduct, Humana has suffered and

will continue to suffer damages in an amount to be proved at trial.
46.

As a direct and proximate result of Preval’s willful and egregious conduct,

Humana is entitled to a recovery of punitive damages.
10

WHEREFORE, Humana hereby demands the following relief:
A.

That Preval, its affiliates, officers, directors, employees, agents, representatives,

attorneys, and all persons acting or claiming to act on their behalf or under their direction or
authority, and all persons acting in concert or participation therewith, be temporarily,
preliminarily, and permanently enjoined from: (i) using or licensing others to use term
Concentra, or any confusingly similar mark or colorable imitation thereof, in connection with the
promotion, advertisement, display, sale, offer for sale, manufacture, production, circulation or
distribution of any goods or services offered by Preval; (ii) performing any act which can or is
likely to lead members of the public to believe that any service or product distributed or sold by
Preval is in any manner associated or connected with Humana, or is sold, manufactured,
licensed, sponsored, approved or authorized by Humana; and (iii) otherwise taking any action
likely to cause confusion, mistake, or deception on the part of the public as to the connection,
affiliation, or other association of Preval’s goods or services with Humana or its goods or
services;
B.

That Preval, its affiliates, officers, directors, employees, agents, representatives,

attorneys and all persons acting or claiming to act on their behalf or under their direction or
authority, and all persons acting in concert or participation therewith, be preliminarily and
permanently enjoined from engaging in acts of unfair competition;
C.

For an order awarding damages, including but not limited to Preval’s profits

associated with its sale of goods or services bearing the name Concentra or the term Concentra,
any damages sustained by Humana, and the costs of the action, in an amount up to three times the
amount of actual damages;
D.

For an order awarding punitive or enhanced damages, as well as attorney’s fees, for
11

Preval’s willful and egregious conduct;
E.

For an order directing Preval to provide a full written accounting of all goods and

services bearing the name Concentra or the term Concentra used by Preval or its affiliates;
F.

For an order directing Preval to destroy, alter, and/or deliver to Humana all

materials, including without limitation, labels, signs, prints, advertisements, prototype plans, and
similar items, in Preval’s possession or under its control bearing or using the name or term
Concentra, or any mark confusingly similar thereto;
G.

For an order directing Preval to file with this Court, and serve upon Humana’s

counsel within thirty (30) days after entry of such judgment, a written report under oath, setting
forth in detail the manner and form in which they have complied with such Judgment;
H.

For an award of Humana’s costs and disbursements incurred in this action;

I.

For an award of interest, including prejudgment interest;

J.

For a trial by jury on all issues so triable; and

K.

For such other and further relief as the Court may deem just and proper, including

without limitation an order requiring corrective action to minimize damage or to alleviate
consumer confusion.

12

DEMAND FOR TRIAL BY JURY
Plaintiffs, Humana Inc. and Concentra, by counsel and pursuant to Fed. R. Civ. P. 38,
hereby demands a trial by jury on all issues raised in this action that are triable to a jury.
Respectfully submitted,

/s/John K. Bush
________
John K. Bush
Christie A. Moore
Amy B. Berge
BINGHAM GREENEBAUM DOLL LLP
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202-3197
502-589-4200 (phone)
Email: [e-mail]
[e-mail]
[e-mail]
COUNSEL FOR PLAINTIFFS
HUMANA INC AND CONCENTRA HEALTH
SERVICES, INC.

4694818_3.doc

13