AMERICAN DIABETES ASSOCIATION v. ADS MEDICAL SERVICES, INC. et al

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 064674.), filed by AMERICAN DIABETES ASSOCIATION. (Attachments: # 1 Civil Cover Sheet, # 2 Designation Form, # 3 Case Management Track Form)(tj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN DIABETES ASSOCIATION,

:
:
:
:
:
:
:
:
:
:
:

Plaintiff,
vs.
ADS MEDICAL SERVICES, LLC
and AMERICAN DIABETES
SERVICES, INC.
Defendants.

Civil Action No.

COMPLAINT

Plaintiff American Diabetes Association, by and through its
attorneys, and as and for its Complaint, avers as follows:
1.

This

infringement,

civil
false

action

asserts

designation

of

claims
origin,

for

trademark

cyberpiracy

and

unfair competition arising under the Lanham Act, as amended, 15
U.S.C. §§ 1051 et seq., and the common laws of the Commonwealth
of

Pennsylvania.

The

amount

in

controversy

exclusive

of

interests and costs exceeds the sum or value of $75,000.
2.

This Court has jurisdiction over the claims Plaintiff

is asserting under 15 U.S.C. § 1121, 28 U.S.C. §§ 1331, 1332(a)
and (b), 1338(a) and (b), and 1367(a).
3.

Plaintiff

American

Diabetes

Association

is

an

Ohio

non-profit corporation, having places of business throughout the
country, including at 150 Monument Road, Bala Cynwyd, PA.

4.

On information and belief, ADS Medical Services, LLC

is a Florida limited liability corporation, having a place of
business

at

951 Broken Sound Parkway NW Suite 250, Boca

Raton FL 33487.
5.

On information and belief, American Diabetes Services,

Inc. is a Florida corporation, having a place of business at 951

Broken Sound Parkway NW Suite 250, Boca Raton FL 33487.
6.

On

information

Services,

LLC:

is

Diabetes

Services,

American

Diabetes

the

and

belief,

parent

Inc.;

company

controls

Services,

Defendant

Inc.;

to

and

ADS

Defendant
operates

and

has

Medical
American
Defendant

materially

participated in and is responsible for the acts of Defendant
American Diabetes Services, Inc.
7.

On further information and belief, Defendant American

Diabetes Services, Inc. is the alter-ego and agent of Defendant
ADS Medical Services, LLC.
8.

On

information

and

belief,

Defendant

ADS

Medical

Services, LLC and Defendant American Diabetes Services, Inc. are
doing business in this judicial district and are carrying out
the acts and causing the injury complained of herein in this
judicial district.

Defendants operate a Web site designed to

solicit purchases from anywhere in the United States, including
this Commonwealth, and Defendants have interacted with residents
2

of this Commonwealth and have sold and shipped products under
the infringing trademark AMERICAN DIABETES and AMERICAN DIABETES
SERVICES into this judicial district.
COUNT I –- TRADEMARK INFRINGEMENT
9.

As a cause of action and ground for relief, Plaintiff

alleges trademark infringement by Defendants under § 32(1) of
the

Lanham

Act,

15

U.S.C.

1114(1),

and

at

common

law,

and

incorporates ¶¶ (1) through (8) of the Complaint as a part of
this count.
10.

Since

1940,

long

prior

to

the

acts

complained

of

herein, Plaintiff has used the name and mark AMERICAN DIABETES
ASSOCIATION in connection with advocacy, education, support and
research funding services in the field of diabetes prevention,
cure

and

management

and

in

the

advertising,

marketing

and

rendering of the same in interstate commerce.
11.
known

Plaintiff is the largest, longest existing and best

organization

providing

diabetes

in

the

United

advocacy,

States

education,

that

specializes

support

and

in

research

funding services and is well known among the general public as
the leading charitable organization in the diabetes field.
12.
AMERICAN

Plaintiff’s services rendered under the name and mark
DIABETES

ASSOCIATION,

3

which

are

recognized

in

this

Commonwealth and the United States to be of the highest quality,
are offered and rendered in interstate commerce.
13.

From 1940 to the present, Plaintiff’s advertising and

promotion of services under the name and mark AMERICAN DIABETES
ASSOCIATION have been and are significant.
history
including

of

marketing
the

its

Internet,

http://www.diabetes.org,
DIABETES

ASSOCIATION

has

featured since 1996.

services
via

its

wherein
been

in
Web

its

Plaintiff has a long
a

variety

site

name

prominently

of

located

media,
at

and

mark

been

displayed

URL

AMERICAN
and

Such extensive promotional efforts have

created a nexus in the public’s mind between Plaintiff’s name
and mark AMERICAN DIABETES ASSOCIATION and the services provided
by Plaintiff.
14.

From 1940 to the present, Plaintiff has engaged in

substantially

exclusive

use

of

the

name

and

mark

AMERICAN

DIABETES ASSOCIATION.
15.

As

a

result

of

such

substantial

advertising

and

promotion under the mark AMERICAN DIABETES ASSOCIATION and the
maintenance of premium quality standards relating thereto, and
the substantially exclusive use of said mark by Plaintiff, the
mark

AMERICAN

DIABETES

ASSOCIATION

has

become

widely

and

favorably recognized by the general consuming public of this
Commonwealth and the United States, as a distinctive indication

4

of the origin of the services of Plaintiff.

The mark AMERICAN

DIABETES ASSOCIATION has become unique and is identified by the
general public solely with Plaintiff and its services.

The mark

AMERICAN DIABETES ASSOCIATION has become an extremely valuable
symbol of Plaintiff, its reputation and goodwill.
16.

As a result of the foregoing efforts and investment,

the mark AMERICAN DIABETES ASSOCIATION has become famous and
distinctive in this Commonwealth and in the United States.
17.

Plaintiff duly registered the mark AMERICAN DIABETES

ASSOCIATION for “conducting professional, familial and patient
education

programs

on

diabetes”

and

“promoting

treatment

and

alleviation of the effects of diabetes through research” in the
United

States

Patent

and

Trademark

Office

(“USPTO”)

under

Registration No. 1,218,650, which issued November 30, 1982.
18.

Registration No. 1,218,650 is prima facie evidence of

the validity the mark shown therein and Plaintiff’s ownership
thereof, and is constructive notice of ownership of the mark
AMERICAN DIABETES ASSOCIATION by Plaintiff, all as provided by
§§ 7(b) and 22 of the Lanham Act, 15 U.S.C. §§ 1057(b) and 1072.
As Registration No. 1,218,650 has achieved incontestable status
under

§

15

registration

of
is

the

Lanham

conclusive

Act,

evidence

15
of

U.S.C.

1065,

Plaintiff’s

right to use the mark 1,218,650 in commerce.

5

§

said

exclusive

A true and correct

copy of Registration No. 1,218,650 is annexed hereto as Exhibit
A and made a part hereof.
19.

Registration

No.

1,218,650

and

the

mark

covered

thereby are valid, in full force and effect, and are owned by
Plaintiff.
20.

Notwithstanding

Plaintiff’s

well-known

and

prior

exclusive rights in the mark AMERICAN DIABETES ASSOCIATION, and
long after the mark AMERICAN DIABETES ASSOCIATION had become
distinctive and famous, Defendants, with constructive and actual
notice of the mark AMERICAN DIABETES ASSOCIATION, have adopted
and

used

the

name

and

mark

AMERICAN

DIABETES

and

AMERICAN

DIABETES SERVICES in this judicial district and in interstate
commerce, in connection with diabetes-related goods and a mail
order diabetic supply service.
21.

Defendants are not associated, affiliated or connected

with or authorized, endorsed or sanctioned by Plaintiff.
22.

Defendants’

use

of

AMERICAN

DIABETES

and

AMERICAN

DIABETES SERVICES in the manner hereinabove alleged was and is
without the consent or authority of Plaintiff.
23.

Plaintiff’s

Defendants’

marks

mark

AMERICAN

AMERICAN
DIABETES

DIABETES
and

ASSOCIATION

AMERICAN

and

DIABETES

SERVICES, when considered in their entireties as applied to the
parties’

goods

and

services,

6

engender

virtually

identical

appearances,

sounds,

impressions,

such

meanings

that

and

confusion

as

overall
to

the

commercial

source

of

the

services offered under the respective marks is likely to result.
24.

The parties’ respective goods and services are highly

related and they move in similar channels of trade.
25.

Defendants’

use

of

AMERICAN

DIABETES

and

AMERICAN

DIABETES SERVICES, in the manner hereinabove alleged, is likely
to

cause

the

Defendants’
licensed

public

and/or

believe,

services

goods,

to

and

otherwise

contrary

to

activities

approved

by,

or

fact,

are

are

that

sponsored,

in

some

way

connected or affiliated with Plaintiff.
26.

Defendants’

use

of

AMERICAN

DIABETES

and

AMERICAN

DIABETES SERVICES in the manner hereinabove alleged constitutes
trademark

infringement

under

§

32(1)

of

the

Lanham

Act,

15

U.S.C. § 1114(1), and at common law.
27.

The

organizations,

protection
such

as

of

marks

AMERICAN

associated

DIABETES

with

nonprofit

ASSOCIATION,

is

of

particular importance because it helps ensure that charitable
donations by members of the public are not misdirected.

It

protects the mission of organizations, like Plaintiff, from the
unfair

loss

of

vital

donations

that

a

confused

inadvertently contributes to the unintended organization.

7

donor

28.

The reputation and fundraising efforts of nonprofits,

like Plaintiff, also are protected against the harm caused when
potential

and

actual

charitable

donors

hold

the

nonprofit

accountable for actions taken by the junior user that do not
rise to the performance standards and/or quality of the senior
nonprofit.

AMERICAN

DIABETES

ASSOCIATION,

a

distinct

organizational identity well known to the public, is extremely
important

to

Plaintiff,

and

Plaintiff

will

have

serious

difficulty in raising funds and attracting members and support
by

reason

of

confusingly

the

damage

similar

use

caused

of

to

AMERICAN

its

identity

by

the

DIABETES

and

AMERICAN

DIABETES

and

AMERICAN

DIABETES SERVICES by Defendants.
29.

Defendants’

use

of

AMERICAN

DIABETES SERVICES, as set forth above, is likely to damage and
materially diminish the value of the name and mark AMERICAN
DIABETES

ASSOCIATION

and

result

in

Defendants

unfairly

benefiting and profiting from the reputation and goodwill that
is

represented

by

the

Defendants

have

name

and

mark

AMERICAN

DIABETES

ASSOCIATION.
30.

been

requested

to

cease

and

desist

from use of AMERICAN DIABETES and AMERICAN DIABETES SERVICES.
Despite the foregoing, Defendants continue to use the names and
marks AMERICAN DIABETES and AMERICAN DIABETES SERVICES.

8

31.
of

the

On information and belief, Defendants have long known
fact

DIABETES

that

the

ASSOCIATION

public

with

the

associates
services

the
of

mark

AMERICAN

Plaintiff,

and

Defendants have sought to capitalize on the goodwill engendered
by

the

mark

striking

and

AMERICAN

DIABETES

confusingly

ASSOCIATION

similar

names

DIABETES and AMERICAN DIABETES SERVICES.

and

by

adopting

marks

the

AMERICAN

Indeed, in addition to

adopting the infringing names and marks AMERICAN DIABETES and
AMERICAN

DIABETES

SERVICES,

domain

names,

such

Defendants

as

also

have

registered

DIABETESASSOCIATION.ORG

and

DIABETESORG.COM, which are confusingly similar to Plaintiff’s
mark and web address (DIABETES.ORG).
32.
commercial

Defendants have intentionally attempted to attract for
gain

users

to

their

AMERICAN

DIABETES

mail

order

diabetic supply service, by creating a likelihood of confusion
with Plaintiff’s name and mark as to the source, sponsorship,
affiliation or endorsement of Defendants’ commercial activities.
Defendants have engaged in the aforementioned acts willfully,
deliberately, in bad faith and with an entire want of care as
would raise the presumption of conscious indifference to their
consequences.
33.

By

reason

of

Defendants’

acts

alleged

herein,

Plaintiff has and will suffer damage to its business, reputation

9

and goodwill, and Defendant has and will enjoy profits to which
it is otherwise not entitled, for which Plaintiff is entitled to
relief at law.
34.
continue

Unless
to

enjoined

infringe

the

by

this

name

Court,

and

mark

Defendants
AMERICAN

will

DIABETES

ASSOCIATION, thereby deceiving the public and causing Plaintiff
immediate and irreparable injury.

It would be difficult to

ascertain the amount of compensation that could afford Plaintiff
adequate relief for such continuing acts, and a multiplicity of
judicial proceedings would be required.

Plaintiff’s remedy at

law is not adequate to compensate it for injuries threatened.
COUNT II -- FALSE DESIGNATION OF ORIGIN
35.

As a cause of action and ground for relief, Plaintiff

alleges that Defendants have engaged in acts in violation of §
43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and incorporates
by reference ¶¶ (1) through (33) of the Complaint as a part of
this count.
36.

Defendants’

use

of

AMERICAN

DIABETES

and

AMERICAN

DIABETES SERVICES in the manner hereinabove alleged constitutes
a false designation of origin within the meaning of § 43(a) of
the Lanham Act, 15 U.S.C. § 1125(a), which is likely to cause
confusion,

mistake

or

deception

10

as

to

the

source,

origin,

authorization,

sponsorship

and/or

approval

of

probable

tendency

and

Defendant’s

activities.
37.

The

Defendants’
SERVICES

in

nature

use
the

of

and

AMERICAN

manner

DIABETES

hereinabove

and

effect

AMERICAN

alleged

is

of

DIABETES

to

enable

Defendants to confuse or deceive the public by misrepresenting
the services offered for sale and rendered under said name and
mark as sponsored, licensed and/or otherwise approved by, or are
in

some

way

connected

or

affiliated

with

Plaintiff.

Such

conduct constitutes a false designation of origin in violation
of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
38.

Defendants’ actions have been conducted intentionally

and willfully, with the express intent to cause confusion and
mistake, to deceive and mislead the purchasing public, to trade
upon the high quality reputation of Plaintiff and to improperly
appropriate

to

itself

the

valuable

trademark

rights

of

Plaintiff.
COUNT III –- CYBERPIRACY
39.

As a cause of action and ground for relief, Plaintiff

alleges cyberpiracy by Defendants under § 43(d) of the Lanham
Act, 15 U.S.C. 1125(d), and incorporate ¶¶ (1) through (37) of
the Complaint as a part of this count.

11

40.

Defendants

have

registered

the

domain

name

AMERICANDIABETES.COM for use in connection with their Web site
in bad faith and with an intent to profit from Plaintiff’s name
and mark AMERICAN DIABETES ASSOCIATION.
GoDaddy.com

WHOIS

record

for

the

A true copy of the

AMERICANDIABETES.COM

domain

name is annexed hereto as Exhibit B and made a part hereof.
41.

Defendants’ domain name is identical to Plaintiff’s

name and mark in its use of the dominant term AMERICAN DIABETES
and is confusingly similar to Plaintiff’s name and mark AMERICAN
DIABETES ASSOCIATION.
42.

On information and belief, Defendants did not register

AMERICANDIABETES.COM for any noncommercial or fair use in a Web
site

accessible

under

said

domain

name.

Rather,

Defendants

intentionally have sought to create a confusingly similar domain
name

that

opportunistically

exploits

and

trades

upon

the

recognition, reputation, and goodwill represented by Plaintiff’s
name and mark AMERICAN DIABETES ASSOCIATION.
43.

Defendants were aware of the prior rights of Plaintiff

in and to the name and mark AMERICAN DIABETES ASSOCIATION at the
time

of

Defendants’

their

registration

registration

and

of
use

AMERICANDIABETES.COM,
of

the

domain

and
name

AMERICANDIABETES.COM have been committed willfully, deliberately

12

and with an entire want of care as would raise the presumption
of conscious indifference to their consequences.
COUNT IV –- UNFAIR COMPETITION
44.
alleges

As a cause of action and ground for relief, Plaintiff
that

Defendants

has

engaged

in

acts

of

unfair

competition at common law, and incorporates by reference ¶¶ (1)
through (42) of the Complaint as a part of this count.
45.

By virtue of Defendants’ acts, hereinabove pleaded,

Defendants have engaged in conduct which is contrary to honest,
industrial and commercial practice, and thus, has engaged in
unfair

competition,

in

violation

of

the

common

law

of

the

Commonwealth of Pennsylvania.
46.

Defendants’ acts, hereinabove pleaded, are calculated

to procuring an unfair competitive advantage by misappropriating
the

valuable

goodwill

developed

by

Plaintiff

at

substantial

effort and expense and represented by the distinctiveness of the
name and mark AMERICAN DIABETES ASSOCIATION.
47.

Defendants

have

engaged

in

the

aforementioned

acts

willfully and deliberately and with full knowledge of the name
and mark AMERICAN DIABETES ASSOCIATION and Plaintiff’s rights
therein.
48.

Defendants will continue to compete unfairly unless

restrained by this Court.

As a result of Defendants’ unfair

13

competition, Plaintiff will be unable to control the reputation
represented by the mark AMERICAN DIABETES ASSOCIATION and will
sustain

still

further

damages

in

an

amount

difficult

to

ascertain.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully pray that:
1.

The Court enter judgment that:
a.

Defendants

have

infringed

the

mark

AMERICAN

DIABETES ASSOCIATION under § 32(1) of the Lanham
Act, 15 U.S.C. § 1114(1), and at common law;
b.

Defendants have violated § 43(a) of the Lanham
Act, 15 U.S.C. § 1125(a);

c.

Defendants have violated § 43(d) of the Lanham
Act, 15 U.S.C. § 1125(d);

d.

Defendants have engaged in unfair competition at
common law.

2.

Defendants

and

each

of

their

respective

agents,

employees, servants, attorneys, successors and assigns, and all
others

in

privity

or

acting

in

concert

therewith,

be

preliminarily and permanently enjoined from:
a.

Using

the

trademark

AMERICAN

DIABETES

ASSOCIATION, AMERICAN DIABETES and/or any other
confusingly

similar

14

designation,

alone

or

in

combination with other words, phrases, symbols or
designs, as a trademark, trade name, domain name
component, or otherwise to market, advertise or
identify Defendants’ activities or services;
b.

Otherwise infringing the mark AMERICAN DIABETES
ASSOCIATION;

c.

Unfairly competing with Plaintiff in any manner
whatsoever,

or

otherwise

injuring

its

business

reputation in the manner complained of herein;
and
d.

Engaging in assignments or transfers, formation
of new entities or associations or utilization of
any other device for the purpose of circumventing
or otherwise avoiding the prohibitions set forth
in sub-paragraphs (a) through (c) above.

3.

Defendants be ordered to transfer the registration of

the domain name AMERICANDIABETES.COM to Plaintiff.
4.
packages,

The

Court

wrappers,

order

that

receptacles,

all

labels,

signs,

advertisements

and

prints,
computer

and/or electronic files in the possession of Defendant, bearing
the

mark

AMERICAN

SERVICES,

AMERICAN

DIABETES

ASSOCIATION,

DIABETES,

AMERICAN

AMERICANDIABETES.COM

DIABETES
or

any

reproduction, counterfeit, copy, or colorable imitation thereof,

15

and all plates, molds, matrices, and other means of making or
reproducing the same, be delivered up and destroyed.
5.

Defendants be required, within thirty (30) days after

service of judgment, to file with this Court and serve upon
Plaintiff’s counsel, a written report, under oath, setting forth
in

detail

the

manner

in

which

they

have

complied

with

the

Judgment.
6.

Defendants

be

directed

to

pay

to

Plaintiff

compensatory damages in an amount to be determined at trial for
the injuries sustained by Plaintiff in consequence of the acts
complained of herein and that such damages be trebled because of
the willful acts described herein.
7.

Defendants

be

required

to

account

for

and

pay

to

Plaintiff all profits realized by it as the result of the acts
complained of herein.
8.

Pursuant to § 35(d) of the Lanham Act, 15 U.S.C. §

1117(d), Defendants be required to pay statutory damages in the
amount to be determined, but estimated to be $100,000.
9.

Defendants be required to pay to Plaintiff both the

costs of this action and the reasonable attorneys’ fees incurred
by Plaintiff.
10.

Defendants be required to pay pre- and post-judgment

interest according to law.

16

11.

The

Court

award

any

punitive

and

exemplary

damages

against Defendant and in favor of Plaintiff.
12.

Plaintiff

be

granted

such

other,

different

additional relief as this Court deems equitable and proper.
Respectfully submitted,
CAESAR, RIVISE, BERNSTEIN,
COHEN & POKOTILOW, LTD.

Dated: June 13, 2012

By

/MPokotilow/
Manny D. Pokotilow (PA ID# 13310)
Email: <[e-mail]>
Salvatore Guerriero (PA ID# 83680)
Email: <[e-mail]>
1635 Market Street
11th Floor – Seven Penn Center
Philadelphia, PA 19103
Tel: [phone]
Attorneys for Plaintiff
American Diabetes Association

17

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Registrant:
American Diabetes Services, INC.
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Boca Raton, Florida 33487
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Registered through: GoDaddy.com, LLC (http://www.godaddy.com)
Domain Name: AMERICANDIABETES.COM
Created on: 14-Mar-99
Expires on: 13-Mar-15
Last Updated on: 29-Aug-11

$625.00*

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Registry Status: clientDeleteProhibited
Registry Status: clientRenewProhibited
Registry Status: clientTransferProhibited
Registry Status: clientUpdateProhibited

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Domain servers in listed order:
NS1.WEBHOSTINGHUB.COM
NS2.WEBHOSTINGHUB.COM

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**.CA domain names will be registered through Go Daddy Domains Canada, Inc., a CIRA certified registrar.

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Although it often appears "WHOIS" or "WhoIs", the term is not an acronym. It means literally "Who is", referring to the searchable database that stores domain information for every URL currently
registered on the Internet. Think of the WHOIS database as the "white pages" of the Internet neighborhood.
Search the GoDaddy.com WHOIS database whenever you want to know who a particular Web site belongs to. You may even be able to find the name and contact information of the business or
individual who holds the registration on that domain. If the registration is private, specific information such as the holder's name, address, phone number and email address will be hidden from public
view.
There are a number of reasons why you might want to use the GoDaddy.com WHOIS database:
• If you're a domainer, you might have your eye on a particular domain name(s) and want to know when it expires in the hopes of registering it yourself. You might also wish to approach the registrant
with a private purchase offer.
• If you are the legal owner of a copyrighted name and you find someone else has registered a domain with that name in it, you'll want to take legal action against whoever's infringed on your rights by
"cyber-squatting" on your Internet territory.
• If you come across your own original content reproduced without permission on another Web site, you may want to look up the name of the domain registrant in order to file a DMCA complaint
against him or her. This federal act makes it illegal for anyone to produce or distribute another's original material on the Internet.
Law enforcement agencies use the WHOIS database to support national and international efforts including copyright protection and anti-terrorism laws. They're able to identify the registrant - or at
least the host or registrar - of every domain name registered today. Legal infractions that can't be traced to an individual or business can certainly be traced to a registrar. Depending on the offense,
the registrar may warn the site owner or shut down the Web site altogether.
GoDaddy.com has been active in combating Internet crime and abuse. GoDaddy.com lawyers have testified before the U.S. House Judiciary Subcommittee on Crime, Terrorism and Homeland
Security about the rapid proliferation of illegitimate pharmacies and child pornography on the Internet. In fact, the company had a hand in the 2008 passage of the Ryan Haight Online Pharmacy
Consumer Protection Act, named after a California teenager who died from an overdose of a drug he bought online.

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