Biozyme, Incorporated v. The Beef Connection LLC

Filing 1

COMPLAINT against The Beef Connection LLC filed by Cheryl Lynn Burbach on behalf of Biozyme, Incorporated. Filing fee $350, receipt number 0866-2839644. Service due by 1/27/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(Burbach, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
KANSAS CITY DIVISION
BIOZYME, INCORPORATED,
Plaintiff,
Civil No. __________________

v.
THE BEEF CONNECTION LLC,
Defendant.

Complaint and Jury Demand
COMES NOW PLAINTIFF, Biozyme, Incorporated, for its Complaint against The Beef
Connection LLC, and alleges as follows:
Parties
1.

Plaintiff Biozyme, Incorporated (“Biozyme”) is a corporation duly organized

under the laws of the State of Missouri with its principal place of business located at 6010
Stockyards Expressway, St. Joseph, Missouri 64504.
2.

Upon information and belief, Defendant The Beef Connection LLC (“TBC”) is a

Kentucky limited liability company with a principal place of business at 10667 Bridlepath Lane,
Union, Kentucky 41091.
Jurisdiction and Venue
3.

This is an action for trademark infringement, false designation of origin, unfair

competition, and cybersquatting arising under the Lanham Act, 15 U.S.C. § 1051 et seq., and the
common law of the State of Missouri.

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4.

This Court has jurisdiction over the subject matter of the complaint pursuant to 15

U.S.C. § 1121; 28 U.S.C. § 1331; and 28 U.S.C. § 1338(a), and over the unfair competition
cause of action under 28 U.S.C. § 1338(b) and 28 U.S.C. § 1367.
5.

This Court has personal jurisdiction over TBC. Upon information and belief,

TBC owns and operates a website, further described below, which provides services to
consumers and businesses residing in the State of Missouri and throughout this judicial district.
Thus, TBC is subject to this Court’s specific and general personal jurisdiction pursuant to due
process and/or the Missouri long arm statute, due to at least TBC’s substantial business in this
forum, including, but not limited to: (1) at least a portion of the infringements and unfair
competition alleged herein; (2) regularly doing or soliciting business, engaging in other
persistent courses of conduct, and/or deriving substantial revenue from goods and/or services
provided to individuals or businesses in Missouri and in this judicial district; and (3) travelling to
Missouri on multiple occasions for business purposes.
6.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c) because a

substantial part of the events giving rise to the claims stated herein occurred in this judicial
district and TBC is subject to personal jurisdiction in this judicial district.
Facts Common to All Counts
Biozyme’s Background and Trademark
7.

Through extensive research and development over the past 50 years, Biozyme has

become a preeminent expert in the agricultural fields of animal nutrition and microbiology.
Capitalizing on its prestige and extensive knowledge in the industry, Biozyme offers numerous
products for naturally improving the performance and health of animals, such as cattle.
Biozyme’s products include, without limitation, vitamin, mineral, and microbial supplements for
animals. To that end, Biozyme offers extensive information and consultation services to

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agricultural producers, most notably livestock growers. Biozyme’s goods and services are of the
highest quality.

The marketing and sales of Biozyme’s goods and services constitute a

substantial and important part of Biozyme’s business.
8.

Biozyme has promoted its goods and services through a variety of media.

Biozyme has spent substantial time, money, and effort developing many distinctive trademarks,
designs, forms of advertisement, and slogans, which Biozyme has actively, continuously, and
prominently used in interstate commerce in association with its goods and services. For instance,
Biozyme has long used in connection with its goods and services the trademark PREMIUM
BEEF CONNECTION, and by virtue of such use, Biozyme has acquired extensive trademark
rights throughout the United States. For purchasers, potential purchasers, and members of the
general public, the PREMIUM BEEF CONNECTION mark symbolizes Biozyme and the
affection, favorable recognition, and substantial goodwill that is associated with Biozyme. The
PREMIUM BEEF CONNECTION mark exclusively symbolizes Biozyme and is associated in
the potential consuming public’s mind with Biozyme, and Biozyme’s valuable goodwill.
9.

Biozyme also owns a registration of the PREMIUM BEEF CONNECTION mark,

which is registered with the United States Patent and Trademark Office as summarized in the
following table:
Trademark

Services

Status

PREMIUM BEEF (Int'l Class: 42) Providing information and consultation to Registered:
CONNECTION livestock growers.
August 10, 1999

Exhibit

A

Registration No:
2,269,138
10.
Registration No. 2,269,138 is presently alive, in good standing, unrevoked, and
uncancelled. The certificate of registration attached as Exhibit A is prima facie evidence of
Biozyme’s ownership of the registration, the validity thereof, and Biozyme’s exclusive right to

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use the mark shown therein in connection with the services set forth in the certificate of
registration. Furthermore, Biozyme’s above-noted registration is incontestable.
11.

The PREMIUM BEEF CONNECTION mark is presently used by Biozyme in

association with Biozyme’s information and consultation services. Biozyme actively promotes
the PREMIUM BEEF CONNECTION mark in its advertisements, including, but not limited to,
print advertising.
12.

Biozyme has used its PREMIUM BEEF CONNECTION mark for almost fifteen

years. Biozyme has also expended money promoting its PREMIUM BEEF CONNECTION
mark. As such, the PREMIUM BEEF CONNECTION mark serves to identify Biozyme as the
source of the services bearing the mark.
TBC’s Infringing Conduct
13.

Upon information and belief, TBC owns and operates the website accessible at

www.thebeefconnection.com (the “Website”). A true and accurate printout of webpages from
the Website is attached hereto as Exhibit B.

The Website prominently uses BEEF

CONNECTION nominative phrases, including without limitation, BEEF CONNECTION, THE
BEEF CONNECTION, and THE BEEF CONNECTION FROM CONCEPTION TO
CONSUMPTION (collectively the “Infringing Marks”), in its domain name and throughout the
content of the webpages accessible at the Website.
14.

As described on the Website, TBC offers consulting services to its members

relating to the production of beef and methods for maximizing the profitability thereof. In
particular, TBC uses the Infringing Marks in connection with services relating to the compilation
and management of an online herd management computer database consisting of performance
data, conversion data and carcass/premium data for commercial producers in the area of cattle,

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beef, and beef products. Notably, the Website states: “A Beef Connection member can utilize
the technology of herd database management, feed performance data, and carcass/premium data
to reveal the true value of the herd and overall beef operation.”
15.

Further, the Website states: “The Beef Connection is a bridge between traditional

cattle production methods and the reality of today’s much more complicated marketplace. You
see, we’ve learned that to maximize your return on investment you need to develop highly
efficient cattle that command top dollar at harvest, and have a marketing plan that identifies the
best opportunities for your operation. That’s why we make the following tools available to every
member. We encourage you to explore each tool and consider how it can help you maximize
your ROI.”
16.

TBC also regularly offers events, such as seminars, in connection with its use of

the Infringing Marks.
17.

TBC offers, and its affiliated Website offers, goods and services identical or

nearly identical to, or highly related to, those of Biozyme.
TBC’s Knowledge of
Biozyme’s PREMIUM BEEF CONNECTION Mark
18.

Upon information and belief, Bob Sand (“Sand”) is the owner of TBC. Sand has

had numerous meetings and communications with Biozyme, and is aware of Biozyme’s prior use
of the PREMIUM BEEF CONNECTION mark. Indeed, Sand has purchased products from
Biozyme and offered featured testimonials complementary of Biozyme’s goods and services.
19.

Recognizing the strength and substantial goodwill represented by Biozyme’s

PREMIUM BEEF CONNECTION mark, Sand, on behalf of TBC, has approached Biozyme and
offered to purchase the PREMIUM BEEF CONNECTION mark from Biozyme. Biozyme has,

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however, not sold its PREMIUM BEEF CONNECTION mark to TBC and the parties have not
entered into any agreement concerning the PREMIUM BEEF CONNECTION mark.
20.

After failing to obtain permission from Biozyme to operate under, or in

connection with, Biozyme’s PREMIUM BEEF CONNECTION mark, on August 1, 2011, TBC
filed a cancellation petition at the United States Patent and Trademark Office (Cancellation No.
92/054,313) (the “Cancellation Petition”), in attempt to cancel Biozyme’s registration number
2,269,138.
Confusion Arising from TBC’s Use
of Biozyme’s PREMIUM BEEF CONNECTION Mark
21.

TBC’s allegations in the Cancellation Petition demonstrate that TBC’s use of the

Infringing Marks in association with TBC’s consulting services is confusingly similar to
Biozyme’s PREMIUM BEEF CONNECTION mark.
22.

Notably, the Cancellation Petition itself has confused the corporate name of TBC

with Biozyme’s PREMIUM BEEF CONNECTION mark.

Indeed, both the caption and

signature block in the Cancellation Petition identify TBC as “PREMIUM BEEF CONNECTION,
LLC” and “Premium Beef Connection, LLC,” respectively, rather than the true corporate name
The Beef Connection LLC.

Thus, upon information and belief, the highly sophisticated

trademark attorneys retained by TBC to prepare the Cancellation Petition have confused TBC
and its Infringing Marks with Biozyme and its PREMIUM BEEF CONNECTION mark.
23.

Moreover, TBC has affirmatively alleged and admitted in the Cancellation

Petition that confusion between its Infringing Marks and Biozyme’s PREMIUM BEEF
CONNECTION mark is likely.

Thus, TBC claims it will be damaged by the continued

registration of Biozyme’s PREMIUM BEEF CONNECTION mark.

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24.

In addition, relevant consumers of Biozyme’s services cannot escape confusion

arising from TBC’s use of the Infringing Marks. Indeed, conducting searches using Biozyme’s
PREMIUM BEEF CONNECTION mark on search engines, such as Google or Bing, returns
TBC’s Website as the top natural search result. Attached hereto as Exhibit C is a true and
accurate printout of search results from Google and Bing showing their respective results when
searched for “Premium Beef Connection.”
Count 1 – Trademark Infringement
15 U.S.C. § 1114
25.

Biozyme incorporates by reference the allegations of each of the above

paragraphs as if fully set forth herein.
26.

Biozyme owns the PREMIUM BEEF CONNECTION mark.

27.

Biozyme’s Registration No. 2,269,138 is incontestable.

28.

Biozyme has used the PREMIUM BEEF CONNECTION mark continuously and

consistently for an extended period of time to advertise and promote its services. Biozyme’s use
of the PREMIUM BEEF CONNECTION mark in interstate commerce has indelibly impressed
on the consuming public’s minds the impression that the PREMIUM BEEF CONNECTION
mark identifies Biozyme as the source of its service.

Thus, the PREMIUM BEEF

CONNECTION mark serves to identify Biozyme as the source of the services bearing the
PREMIUM BEEF CONNECTION mark because the relevant consumers have come to associate
the PREMIUM BEEF CONNECTION mark with Biozyme.
29.

TBC adopted and used the Infringing Marks as shown on its Website and in the

domain name thebeefconnection.com after Biozyme first began using the PREMIUM BEEF
CONNECTION mark.

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30.

TBC’s adoption and use of the Infringing Marks, including in the domain name

for its Website and on the webpages accessible on its Website, to identify TBC’s services
constitutes use of a copy and colorable imitation of

Biozyme’s PREMIUM BEEF

CONNECTION mark, and is likely to cause confusion, mistake, or to deceive the purchasing
public into believing that the goods and services of TBC emanate from the same source of the
goods and services previously provided by Biozyme, or that there is some connection,
sponsorship, or affiliation between the services of Biozyme and TBC, all of which are contrary
to fact.
31.

Biozyme has no control over the nature and quality of the goods and services of

TBC. Any failure, neglect, or default by TBC in providing goods or services will reflect
adversely on Biozyme as the believed source or origin thereof, which will hinder Biozyme’s
effort to continue to protect its outstanding reputation in the industry and subject Biozyme to loss
of sales and service and the considerable expense to promote its goods and services in
association with the PREMIUM BEEF CONNECTION mark, all to the irreparable harm of
Biozyme.
32.

TBC’s conduct constitutes an infringement of Biozyme’s registered PREMIUM

BEEF CONNECTION mark, and is actionable under the provisions of 15 U.S.C. § 1114.
33.

Upon information and belief, TBC has deliberately and willfully infringed

Biozyme’s registered PREMIUM BEEF CONNECTION mark in violation of Section 32 of the
Lanham Act, 15 U.S.C. § 1114 and Biozyme has been, and will continue to be, irreparably
harmed by such infringement unless this Court enjoins TBC from its continuing infringement
pursuant to 15 U.S.C. § 1116.

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34.

Upon information and belief, TBC is willfully infringing Biozyme’s registered

PREMIUM BEEF CONNECTION mark.

As a result of TBC’s deliberate and willful

infringement of Biozyme’s registered PREMIUM BEEF CONNECTION mark, Biozyme is
entitled to damages, TBC’s profits, attorneys’ fees and costs, and any and all other relief
authorized by 15 U.S.C. § 1117.
Count 2 – False Designation of Origin
15 U.S.C. § 1125
35.

Biozyme incorporates by reference the allegations of each of the above

paragraphs as if fully set forth herein.
36.

TBC’s conduct as recited herein, including its use of the Infringing Marks on and

in connection with its goods and services and associated Website and thebeefconnection.com
domain name constitutes a false designation of origin in that the use of the terms “BEEF
CONNECTION” in connection with the services of TBC, is likely to cause confusion, to cause
mistake, or to deceive others as to the affiliation, connection, or association of TBC with
Biozyme, or as to the origin, sponsorship, approval of its goods, services and commercial
activities with Biozyme and constitutes a violation of 15 U.S.C. § 1125(a).
37.

Upon information and belief, TBC’s conduct is willful and intentional with the

purpose of misleading the public into believing that the goods and services of TBC are in some
way sponsored by, affiliated with, or connected to the services previously provided by Biozyme
under its PREMIUM BEEF CONNECTION mark, all of which are contrary to fact. Biozyme
has been and will continue to be irreparably harmed by TBC’s conduct unless this Court enjoins
TBC from its unlawful conduct pursuant to 15 U.S.C. § 1116.

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38.

As a result of TBC’s deliberate and willful conduct, Biozyme is entitled to

damages, TBC’s profits, attorneys’ fees and costs, and any and all other relief authorized by 15
U.S.C. § 1117.
Count 3 – Unfair Competition
15 U.S.C. § 1125
39.

Biozyme incorporates by reference the allegations of each of the above

paragraphs as if fully set forth herein.
40.

Biozyme uses its PREMIUM BEEF CONNECTION mark to identify it as the

source of services in providing information and consultation to livestock growers.
41.

As a result of the facts alleged above, Biozyme has developed its PREMIUM

BEEF CONNECTION mark to be closely associated with, and to be an indication of source of
origin of, services rendered by Biozyme. Biozyme’s PREMIUM BEEF CONNECTION mark
has acquired a substantial and favorable reputation and goodwill in connection with the goods
and services provided by Biozyme.
42.

TBC’s continued and unauthorized use of the Infringing Marks in advertising is

likely to, and upon information and belief is intended to, cause confusion or mistake or to
deceive as to the affiliation, connection or association of TBC with Biozyme or the possible
origin, sponsorship or approval of TBC’s services by Biozyme.
43.

TBC’s use of the Infringing Marks is a misrepresentation that TBC is affiliated

with Biozyme, which constitutes unfair competition with Biozyme.
44.

Upon information and belief, TBC has deliberately and willfully committed acts

of unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125. TBC’s
conduct has, and continues to, irreparably harm Biozyme.

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45.

Unless TBC is restrained and enjoined, Biozyme will suffer further and

irreparable damage for which Biozyme has no full and adequate remedy at law. As a result of
TBC’s deliberate and willful conduct, Biozyme is entitled to damages, TBC’s profits, attorneys’
fees and costs, and any and all other relief authorized by law.
Count 4 – Unfair Competition Under Missouri Common Law
46.

Biozyme incorporates by reference the allegations of each of the above

paragraphs as if fully set forth herein.
47.

TBC’s acts have created, and unless restrained by this Court, will continue to

create, a likelihood of confusion and deception of the consuming public, causing irreparable
injury to Biozyme for which Biozyme has no adequate remedy at law.
48.

TBC’s conduct constitutes unfair competition under the common law of Missouri

by a deliberate course of conduct, all without authorization, license, privilege, or justification.
49.

Upon information and belief, TBC acted with full knowledge of Biozyme’s use of

the PREMIUM BEEF CONNECTION mark and without regard to the likelihood of confusion
and deception of the public created by those activities.
50.

TBC’s conduct demonstrates an intentional, willful, and malicious intent to trade

on the goodwill associated with Biozyme to the substantial and irreparable injury of Biozyme.
51.

As a result of TBC’s acts, Biozyme has been damaged and will continue to be

damaged in an amount not as yet determined or ascertainable.

At a minimum, however,

Biozyme is entitled to injunctive relief, an accounting of TBC’s profits, actual damages, punitive
damages, attorneys’ fees, the costs of this action, and any and all other relief authorized by law.

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Count 5 – Cybersquatting
15 U.S.C. § 1125(d)
52.

Biozyme incorporates by reference the allegations of each of the above

paragraphs as if fully set forth herein.
53.

TBC has registered and/or is using the domain name thebeefconnection.com (the

“Domain Name”), which is identical and/or confusingly similar to Biozyme’s PREMIUM BEEF
CONNECTION mark. TBC’s Domain Name consists of or contains a mark that is owned by
Biozyme, is the subject of a federal trademark registration, and which was distinctive at the time
of TBC’s registration and/or use of the Domain Name.
54.

TBC has unjustly obtained gains, profits, and advantages as a result of its

wrongful acts of federal trademark cyberpiracy in amounts thus far not determined.
55.

Upon information and belief, TBC has a bad faith intent to profit from Biozyme’s

PREMIUM BEEF CONNECTION mark.
56.

Upon information and belief, the foregoing acts were done willfully and

deliberately and with an intent to engage in cyberpiracy at Biozyme’s expense in violation of
Section 43(d) of the Lanham Act, 15 U.S.C. § 1125(d).
57.

TBC’s unlawful acts in violation of Section 1125(d) of the Lanham Act have

caused, and unless enjoined by this Court, will continue to cause, irreparable harm and damage
to Biozyme. Accordingly, Biozyme seeks permanent injunctive relief pursuant to 15 U.S.C. §
1116.
58.

Biozyme has no adequate remedy at law and is suffering irreparable harm and

damage as a result of TBC’s acts of federal trademark cyberpiracy in an amount thus far not
determined, but within the jurisdiction of this Court, which amount should be trebled pursuant to
15 U.S.C. § 1117.

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Prayer for Relief
WHEREFORE, Biozyme demands a judgment against Defendant and prays that this Court:
a.

Preliminarily and permanently enjoin The Beef Connection LLC and its respective
agents, servants, employees, and attorneys and all persons in active concert or
participation with it or acting for, with, by, through, or under it, from infringing
Biozyme’s PREMIUM BEEF CONNECTION mark; from unfair competition with
Biozyme; from falsely designating the origin of Biozyme’s services; and from
cyberpiracy;

b.

Order The Beef Connection LLC to deliver up for destruction to Biozyme all
unauthorized products and/or advertisements in its possession or under its control
bearing the PREMIUM BEEF CONNECTION mark or any simulation, reproduction,
counterfeit, copy, or colorable imitation thereof, pursuant to 15 U.S.C. § 1118;

c.

Grant to Biozyme, should Biozyme so elect, an award of statutory damages of up to
$100,000 per domain name as authorized under 15 U.S.C. §§ 1117(d) and 1125(d) as
a result of The Beef Connection LLC’s acts of cyberpiracy;

d.

Grant to Biozyme an award and accounting of The Beef Connection LLC’s profits,
any damages sustained by Biozyme, and that all profits or damages be trebled, the
costs of this action, and Biozyme’s attorneys’ fees, pursuant to 15 U.S.C. § 1117;

e.

Award Biozyme punitive damages for The Beef Connection LLC’s acts of unfair
competition;

f.

Order and direct The Beef Connection LLC to immediately transfer the domain name
thebeefconnection.com to Biozyme; and

g.

Grant to Biozyme such further relief as may be equitable and proper.

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Jury Demand
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Biozyme, Incorporated
hereby demands a trial by jury.

Dated: September 26, 2011

Respectfully Submitted,
s/ Cheryl L. Burbach
Cheryl L. Burbach, Mo Bar #48,605
Matthew B. Walters, Mo Bar #59,812
HOVEY WILLIAMS LLP
10801 Mastin Boulevard, Suite 1000
84 Corporate Woods
Overland Park, Kansas 66210
T: (913) 647 – 9050
F: (913) 647 – 9057
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFF
BIOZYME, INCORPORATED

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