Case 2:15-cv-00630-RJS-DBP Document 9 Filed 09/25/15 Page 1 of 23

JUSTIN D. HEIDEMAN (USB No. 8897)

JUSTIN R. ELSWICK (USB No. 9153)
HEIDEMAN & ASSOCIATES
2696 North University Avenue, Suite 180
Provo, Utah 84604
Telephone: (801) 472-7742
Facsimile: (801) 374-1724
Email: jheideman@heidlaw.com
jelswick@heidlaw.com
Attorneys for Plaintiffs Master Strategies, LLC and AAM Investments, LLC

IN THE UNITED STATES DISTRICT COURT IN AND FOR

THE DISTRICT OF UTAH, CENTRAL DIVISION
______________________________________________________________________________
MASTER STRATEGIES, LLC, a Florida
limited liability company, AAM
INVESTMENTS, LLC, a Nevada
limited liability company,

MOTION FOR TEMPORARY

RESTRAINING ORDER AND
PRELIMINARY
INJUNCTION

Plaintiff,
Case No. 2:15-cv-00630
v.
Judge: Robert J. Shelby
RJ WORLDWIDE, LLC, a Texas limited
liability company d/b/a/ SKINNY
BODY CARE, and BENJAMIN
GLINSKY, an individual,
Defendants.
COMES NOW Plaintiff Master Strategies, LLC (MS) by and through counsel of
record of the law firm Heideman & Associates, and pursuant to FED. R. CIV. P. 65 submits this
Motion for Temporary Restraining Order and Preliminary Injunction seeking to restrain

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Defendant Benjamin Glinsky (Glinsky) and Defendant RJ Worldwide, LLC d/b/a/ Skinny
Body Care (Glinsky Companies) from selling bottles of Skinny Fiber product.
RELIEF SOUGHT AND GROUND FOR THE MOTION
Defendants Glinsky and Glinsky Companies have infringed upon the MSs valid,
protected trademark resulting in significant loss of profit and damages. Defendants Glinsky and
Glinsky Companies have also altered the original Skinny Fiber formula from the original
formula and have mislabeled the ingredients contained in the Skinny Fiber pill resulting in
confusion in the marketplace and injury to Plaintiff MS rightful Trademark. Plaintiff MS
satisfies all of the requirements required by FED. R. CIV. P. 65. Plaintiff MS requests the
following relief: that this Court restrain and enjoin Defendants Glinsky and Glinsky Companies
from further selling any bottles of Skinny Fiber.
RELEVANT FACTS
Master Strategies, LLCs Ownership of the Trademark and Formula
1.

Plaintiff MS filed for and obtained registration for the trademark Skinny Fiber (the
Trademark) on March 9, 2010. [Trademark Electronic Search System Record for
Skinny Fiber, attached as Exhibit 1].

2.

On June 15, 2015, Plaintiff MS filed a Combined Declaration of Use and Incontestability
under Sections 8 & 15 of the Lanham Act (the Trademark Act). [Trademark Status &
Document Retrieval Record for Skinny Fiber, attached as Exhibit 2].

3.

The United States Patent and Trademark Office emailed notice of acceptance of Plaintiff
MS Section 8 & 15 declarations on July 8, 2015, confirming both ongoing use and
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incontestability of the Trademark. [See Exhibit 2].

4.

Plaintiff MS is the sole owner of the Trademark, and has never conveyed ownership of
the Trademark to any third party. [See Affidavit of Travis Beauchesne, 2 attached as
Exhibit 3 and Affidavit of John Ziglar, 2 attached as Exhibit 4].

5.

The two members/owners/managers of Plaintiff MS were Beauchesne and John Ziglar

(Ziglar). [See Exhibit 3, 3; Exhibit 4, 3].

6.

In connection with the Trademark, Plaintiff MS owned, and continues to own, a weightloss formula (the Formula). [See Exhibit 3, 4; Exhibit 4, 4].

7.

In Fall of 2010, Plaintiff MS licensed the Trademark and the Formula to its individual
members, Beauchesne and Ziglar. [See Exhibit 3, 5; Exhibit 4, 5].

8.

Plaintiff MS retained ownership of the Trademark and Formula. Beauchesne and Ziglar
only obtained licenses for the use of the Trademark and the Formula subject to their
obligations to pay royalties to Plaintiff MS from the proceeds derived from any licensing
thereof. [See Exhibit 3, 6; Exhibit 4, 6; see also Affidavit of Stephen Morrow, 6,
attached as Exhibit 5].

Involvement of Glinsky and the Final Agreement

9.

In the Fall of 2010, Beauchesne initiated discussions with Stephen Morrow (Morrow)
to explain Plaintiff MS plans for monetizing the use of the Trademark and the Formula.
[See Exhibit 3, 7; Exhibit 4, 7; Exhibit 5, 2].

10.

Morrow then initiated discussions with an acquaintance, Glinsky, who was in the
marketing business and had developed software and systems to market personal use
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products, including multi-level marketing (MLM). [See Exhibit 3, 8; Exhibit 4, 8;

Exhibit 5, 3].
11.

Beauchesnes initial objective was to engage Glinsky as a provider of marketing and

MLM expertise. Discussions proceeded, and Glinsky expressed an interest in becoming
part of a joint business arrangement to market the Trademark and the Formula. See
Exhibit 3, 9; Exhibit 4, 9; Exhibit 5, 4].

12.

The parties exchanged emails regarding a possible business relationship and met at
Glinskys home in Encinitas, California on October 13, 2010 to discuss the plans. [See
Exhibit 3, 10; Exhibit 4, 10].

13.

By email dated October 14, 2010, Morrow or Glinksy, without the input of Beauchesne,
drafted and circulated a short agreement. This short agreement involved Iclick
Promotions, a company partially owned by Beauchesne (Iclick was working with
Beauchesne on monetizing the Trademark and the Formula). [See Exhibit 3, 11;
Exhibit 4, 11].

14.

This draft agreement included a provision that called for the transfer of the Trademark to
Glinsky along with certain internet domains, a currently existing inventory of Skinny
Fiber product, and marketing materials (which marketing materials, according to the draft
agreement, included creative email links, creative banners and additional email
creatives). [Draft Agreement, attached as Exhibit 6; see also Exhibit 3, 12; Exhibit 4,
12].

15.

Beauchesne rejected the draft prepared specifically because he did not have independent
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authority to transfer ownership of the Trademark or the Formula. [See Exhibit 3, 13;
Exhibit 4, 13].
16.

Shortly thereafter, the parties worked on a revised final agreement. To Beauchesnes

knowledge, none of the parties used legal counsel in preparing the final agreement. [See
Exhibit 3, 14]

17.

On or about October 22, 2010, Glinsky, Beauchesne and Morrow individually concluded
and signed a final agreement (the Final Agreement ). [Final Agreement, attached as
Exhibit 7; see also Exhibit 3, 15; Exhibit 4, 14; Exhibit 5, 7].

18.

The Final Agreement is by and between Beauchesne, Morrow and Glinsky individually.
[See Exhibit 7; Exhibit 3 16].

19.

Plaintiff MS, the owner of the Trademark and Formula, was not a party to the Final
Agreement. [See Exhibit 7; Exhibit 3 17].

20.

Under the Final Agreement, Glinsky agreed to pay $12,000 to Iclick Promotions for the
transfer of (1) an inventory of Skinny Fiber bottles containing pills that incorporated
the Formula, (2) certain domain names (including skinnyfiber.com) and (3) other
creative materials. [See Exhibit 7; Exhibit 3 18].

21.

Conspicuously absent from the Final Agreement is any mention of the Skinny Fiber
trademark owned by Plaintiff MS. [See Exhibit 7].

22.

According to the sixth paragraph of the Final Agreement, Beauchesne and Morrow were
entitled to an automatic royalty payment ranging from $2.50 to $4.00 per bottle of
product sold for the first 60 days up to $50,000. After payment of the $50,000.00, the per
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bottle royalty could be continued only if Beauchesne and Morrow were responsible for
10% of product sales. [See Exhibit 7].
23.

According to the seventh paragraph of the Final Agreement, Beauchesne and Morrow
were additionally entitled to a separate compensation of $2.50 per bottle of product sold
up to the amount of $20,000.00 per month. This additional royalty could exceed $20,000
per month only if Beauchesne and Morrow were responsible for a specified level of the
joint enterprises sales. According to the Agreement, [t]he intention of the company is to
develop additional products to be sold through the net, and the royalty was to apply to
sales of all such additional product. [See Exhibit 7].

24.

According to the seventh paragraph of the Final Agreement, Beauchesne and Morrow
were entitled to a separate compensationBeauchesne and Morrow were entitled to
permanently-grandfathered preferred positions in the MLM program of the joint
enterprise.

25.

According to paragraph 3 of the second page of the Final Agreement, the parties agreed
to act in good faith. [See Exhibit 7].

26.

Neither the Final Agreements provisions nor the understanding of the parties required
that Beauchesne or Morrow engage in specific acts; rather, the terms of the Final
Agreement merely grant additional compensation, over and above the minimum
compensation payable and the award of preferred MLM positions, to Beauchesne and
Morrow if they chose engage in specified activities. [See Exhibit 7; Exhibit 3, 19].

27.

At the direction of Beauchesne, Glinsky wired $12,000 on October 20, 2010 to Iclick (a
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company partially owned by Beauchesne), to reimburse the costs Iclick had incurred
associated with the inventory of bottles, the domain names and the other creative
materials. [See Exhibit 3, 21].
28.

No payment was made to Plaintiff MS (the owner of the Trademark and Formula), and
Plaintiff MS was not a signatory to the Final Agreement. [See Exhibit 3, 17, 22:
Exhibit 4, 19].

29.

Morrow and Beauchesne both understood that the Final Agreement did not result in a
transfer of ownership of the Trademark or the Formula to Glinsky. [See Exhibit 3, 22,
50: Exhibit 5, 8].

30.

In fact, Plaintiff MS was to be paid ongoing licensing fees by Beauchesne for the use of
the Formula and the Trademark out of his profits from the joint enterprise contemplated
by the Final Agreement. [See Exhibit 3, 23; Exhibit 4, 21].

Glinsky Companies
31.

Sometime after the date of the Final Agreement, Glinsky organized and created the
Glinsky Companies. [See Exhibit 3, 24].

32.

The Glinsky Companies began marketing the product and building an MLM organization
of distributors to sell product. [See Exhibit 3, 25].

33.

Glinsky currently operates Skinny Body Care as a network marketing company, selling
Skinny Fiber and other health products through a network of independent distributors.
[Skinny Body Care Web Page (accessed August 9, 2015 at 12:55 p.m.), attached as
Exhibit 8].
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Glinsky Attempt to Terminate the Final Agreement

34.

By email dated January 3, 2011, Glinsky contacted Beauchesne and asked where he
should send money resulting from pre-launch sales. [January 3, 2011 Email from
Glinksy, attached as Exhibit 9].

35.

Despite this request, no funds were ever sent. [See Exhibit 3, 27].

36.

The MLM was set to officially open on January 20, 2011. [See Exhibit 3, 28].

37.

Glinksy stated in two separate videos posted on You Tube in 2014 that he knew the
product would be a success. [See Exhibit 3 57].

38.

By email dated January 21, 2011, Glinsky summarily disavowed any agreement among
the parties, saying only sorry it did not work out. Glinsky, however, mentions that he
would like to work something out on this deal [with Beauchesne], and move on.
[January 21, 2011 Email from Glinksy, attached as Exhibit 10].

39.

This notice was given less than 24 hours after the official launch of the MLM, at which
time Glinsky knew that the joint enterprise was successful. [See Exhibit 3, 30].

40.

By email dated January 24, 2011 Beauchesne responded: lets talk about how we can
unwind it [i.e. the Final Agreement], and also stated that he had not received the
commission check for December or the royalty payments in accordance with the Final
Agreement. [January 24, 2011 Email from Beauchesne, attached as Exhibit 11].

41.

Because Glinsky summarily and unilaterally attempted to terminate the Final Agreement,
Beauchesne and Morrow were denied any opportunity to perform and earn additional
compensation under the Final Agreement. [See Exhibit 3, 32].
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Glinsky Companies Alter the Formula

42.

Unbeknownst to Beauchesne, Glinsky and the Glinsky Companies began to actively

market product, using the Trademark, without payment or notice to Beauchesne. [See
Exhibit 3, 33].

43.

Beauchesne followed up and attempted email and telephone contact with Glinsky to
discuss his attempted termination of the Final Agreement. [See Exhibit 3, 34].

44.

Beauchesne and MS subsequently retained an attorney to serve Glinsky with a formal

demand letter to cease and desist. [See Exhibit 3, 35].

45.

After several attempts to deliver the letter, counsel for Beauchesne and Plaintiff MS
discovered that Glinsky had left his residence in California with no notice. [See Exhibit 3,
36].

46.

By letter dated June 27, 2011, Beauchesnes then-lawyer demanded that Glinsky honor
the License Agreement or cease using the Trademark. [See Exhibit 3, 37].

47.

In October of 2013, Beauchesne discovered a business listing for Skinny Fiber in Utah.
Beauchesne discovered that the address for the business was at a manufacturing facility
he had introduced to Glinsky in 2010. [See Exhibit 3, 38].

48.

Beauchesne visited the facility and discovered that Glinsky and his companies were
conducting business and using a Utah address. [See Exhibit 3, 39].

49.

The location was owned by a company named Nova Ship, a company to whom
Beauchesne had introduced Glinsky as a possible producer of bottles containing the
product. [See Exhibit 3, 40].
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50.

An employee of Nova Ship told Beauchesne that Skinny Fiber was their biggest customer
and that they had manufactured well over 600,000 bottles of Skinny Fiber. [See Exhibit
3, 41].

51.

Nova Ship is only one of the manufacturers of product and so the total sales of Skinny
Fiber could be multiplied many times over depending upon the production volume of
other manufacturers. [See Exhibit 3, 42].

52.

In early October, 2013, Beauchesne called the owner of Nova Ship, who acknowledged
his company was manufacturing Skinny Fiber; this individual also stated that Glinsky had
told him that Glinsky and Beauchesne were still working together. [See Exhibit 3, 43].

53.

The owner of Nova Ship advised Beauchesne that Glinsky had changed the formulation,
yet Beauchesne noticed that the bottles retained the original-designed labels and the
Skinny Fiber Trademark. [See Exhibit 3, 44].

54.

On October 15, 2013, Beauchesne hired a private investigator and discovered that
Glinsky had relocated his home (from which Glinsky conducted his business operations)
to Florida. [See Exhibit 3, 45].

55.

Beauchesne changed law firms, and, by letter dated October 17, 2013, Beauchesnes
lawyer demanded, again, that payment be made and that Glinsky desist using the Skinny
Fiber Trademark. [See Exhibit 3, 46].

56.

The October 17, 2013 cease and desist letter from Beauchesenes lawyer to Glinsky was
taped to Glinskys front door of his house in Florida on October 21, 2013. [See Exhibit
3, 47].
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57.

On October 28, 2013, Glinsky sent Beauchesne a text message and asked what do you
want? Beauchesne responded by text, you need to respond to the letter taped to your
front door. Glinsky responded by text, when you have a real answer let me know.
[See Exhibit 3, 48].

58.

On May 7, 2014, Glinsky, when questioned about his highly-successful MLM and
marketing of Skinny Fiber, stated in a YouTube video that I bought it [Skinny Fiber].
[See Exhibit 3, 49].

59.

On September 26, 2014, Glinsky also stated in a separate YouTube video that his
company had paid out millions of dollars in commissions and made millions of bottles
of product. [See Exhibit 3, 50].

Glinsky Attempt to File Duplicate Trademark

60.

Glinsky and the Glinsky Companies have never had a contract of any kind or nature with
Plaintiff MS for use of the Trademarkand neither Beauchesne nor Ziglar (the members
of Plaintiff MS) have ever agreed to the transfer of the Trademark. [See Exhibit 3, 51;
Exhibit 4, 22].

61.

Furthermore, Glinsky has defaulted on the royalty and compensation provisions of the
Final Agreement as those pertain to Beauchesne and Morrow and have prevented them
from earning additional compensation thereunder. [See Exhibit 3, 52].

62.

Plaintiff MS discovered that on April 7, 2015, Glinsky and/or the Glinsky Companies
through their legal counsel fraudulently attempted to file a trademark application for
Skinny Fiber. [See TSDR record for Skinny Fiber, attached as Exhibit 12; see also
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Exhibit 3, 53; Exhibit 4, 23].

63.

The trademark application filed by Glinsky and/or the Glinsky Companies was properly
denied by the Trademark Examining Attorney because the same Trademark is already
held by Plaintiff MS. [See USPTO Office Action, attached as Exhibit 13; see also
Exhibit 3, 54; Exhibit 4, 24].

64.

Glinsky has asserted that the Final Agreement effectuated a transfer of the ownership of
Trademark, because, Glinksy claims, the Trademark was part of the creative materials
that were transferred for payment of the $12,000. [See Exhibit 3, 55].

65.

At no time from January 21, 2011 (the date that Glinsky repudiated the Final Agreement)
until mid-2015 did Glinsky assert ownership of the Trademark to Master Strategies or
Beauchesne, even though cease and desist letters were issued. [See Exhibit 3, 58].

66.

Plaintiff MS is selling product containing the original Skinny Fiber formula on Ebay.
Plaintiff MS has sought removal of Ebay listings of Glinsky-manufactured Skinny
Fiber due to trademark infringement, and Ebay has removed listings of Glinskymanufactured Skinny Fiber as a result of the infringement. [See Ebay emails, attached as
Exhibit 14; see also Exhibit 3, 59].

67.

Additionally, there has been considerable customer confusion on Amazon.com and Ebay
concerning the actual ownership of the Skinny Fiber Mark and the formulation associated
therewith. Glinsky Companies have told distributors and customers that Plaintiff MSs
product is fake. [See Amazon and Ebay emails, attached as Exhibit 15].

68.

As noted above, the draft agreement providing for assignment of the Trademark which
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was presented to Beauchesne was rejected. [See Exhibit 3, 56].

69.

Beauchesne did not have authority to sell the Trademark to Glinsky because he was only
a licensee of Plaintiff MS who is the actual owner of the Trademark, and neither
Beauchesne nor Ziglar (the co-owners and managers of MS) ever consented to the
transfer of the Trademark. [See Exhibit 3, 51; Exhibit 5, 9].

70.

As previously noted, the Trademark was not held by any of the three individual parties to
the Final Agreement and could not be transferred under the Final Agreement in any
event. [See Exhibit 3, 2; Exhibit 5, 10].

Glinsky Companies Mislabel Ingredients

71.

On or about August 14, 2015, one of the managers of Plaintiff MS (Bruce Lemons)
accessed a website selling Skinny Fiber [skinnyfibersupersale.com]. The MS manager
ordered a bottle of Glinsky Companies Skinny Fiber from the website, received an
immediate email confirming the order and on or about August 20, 2015, the packaged
bottle was received. [Affidavit of Bruce Lemons, 1-5, attached as Exhibit 16; Second
Affidavit of John Ziglar, 2-3, attached as Exhibit 17].

72.

Bruce Lemons gave the package to Beauchesne who mailed the unopened package the
same day to Nutrition Formulators via US Post. [Exhibit 16, 6; Exhibit 3, 60-61,
Exhibit 17, 4].

73.

Nutrition Formulators received the bottle. Its employee, Liliana Rojas, opened the
package and sealed bottle and separated the contents (pills) into separate packets. The
packets were sent Venture Laboratories in Lexington, Kentucky for testing of Enzyme
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contents. [See Affidavit of Liliana Rojas, 4-5, attached as Exhibit 18; see also Exhibit
17, 4].
74.

On September 10, 2015, Venture Laboratories produced a report on the enzyme contents.
The report, (attached as Exhibit A to Exhibit 17 shows that the product ordered from
Skinny Body Care is significantly different from the label on the bottle and is
significantly different from the specifications for product contained in the original
Formula owned by Plaintiff MS. [See Exhibit 17, 5-8; see also Exhibit A].

75.

As noted in paragraph 53, above, the owner of Nova Ship advised Beauchesne that
Glinsky had changed the formulation, yet Beauchesne noticed that Glinsky kept the
original-designed labels and the Skinny Fiber Trademark. [See Exhibit 3, 44].
ARGUMENT
Pursuant to FED. R. CIV. P. 65 provides in relevant part:
(a)

Preliminary Injunction.
(1) Notice. The court may issue a preliminary injunction only on notice to
the adverse party.

.
(d)

Contents and Scope of Every Injunction and Restraining Order.

(1) Contents. Every order granting an injunction and every restraining
order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detailand not by referring to the
complaint or other documentthe act or acts restrained or
required.

A party seeking a preliminary injunction under Rule 65 must prove that:

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(1) [he or she] will suffer irreparable injury unless the injunction issues; (2) the
threatened injury . . . outweighs whatever damages the proposed injunction may cause the
opposing party; (3) the injunction, if issued, would not be adverse to the public interest;
and (4) there is a substantial likelihood [of success] on the merits.
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. Utah 2003) (citing RTC v.
Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992); Kikumura v. Hurley, 242 F.3d 950, 955
(10th Cir. 2001)).
The Tenth Circuit has adopted the Second Circuits liberal definition of the probability
of success requirement. Otero S&L Assn v. FRB, 665 F.2d 275, 278 (10th Cir. 1981).
Accordingly, where a moving party has established that the three harm factors tip decidedly in
its favor, the probability of success requirement is somewhat relaxed. Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001); Heideman, 348 F.3d at
1189.
The standard for a temporary restraining order is the same as a preliminary injunction.
Bachman By & through Bachman v. W. High Sch., 900 F.Supp. 248, 250 (D. Utah 1995) aff'd
132 F.3d 542 (10th Cir. 1997); MonaVie, LLC v. Wha Lit Loh, 2011 U.S. Dist. LEXIS 35197,
2011 WL 1233274 (D. Utah Mar. 31, 2011). Plaintiff MS does not seek issuance of an ex parte
temporary restraining order.
Plaintiff MS meets the four requirements necessary for issuance of a preliminary
injunction.
1.

Plaintiff MS satisfies the irreparable injury element.

To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.

Irreparable harm is not harm that is merely serious or substantial. The party seeking injunctive

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relief must show that the injury complained of is of such imminence that there is a clear and
present need for equitable relief to prevent irreparable harm. It is also well settled that simple
economic loss usually does not, in and of itself, constitute irreparable harm; such losses are
compensable by monetary damages. Heideman, 348 F.3d at 1189 (brackets, citations, and
internal quotation marks omitted).
A finding of irreparable harm may be based on factors such as: inability to calculate
damages, harm to goodwill, diminishment of competitive positions in marketplace, loss of
employees unique services, the impact of state law, and lost opportunities to distribute unique
products as the difficulty in calculating damages . . . and [the] existence of intangible harms such
as loss of goodwill or competitive market position. Dominion Video Satellite, Inc. v. Echostar
Satellite Corp., 356 F.3d 1256, 1263 (10th Cir. 2004).
The harm to Plaintiff MS is irreparable. Glinsky Companies are directly competing with
Plaintiff MS the in the market place. [See Relevant Facts, 66-67 (supra)]. At this juncture,
there is confusion in the market place because the labels on the product sold by Glinsky
Companies have not been changed, (see Relevant Facts, 53) and the trademark on Plaintiff MS
bottles of product and the Glinsky Companies bottles of product are nearly identical. Evidence
of this confusion is established by the various purchasers and distributors who have made
inquiries on Amazon and Ebay. [See Exhibit 15]. This confusion also affects a large number of
distributors, who are selling Glinsky Companies Skinny Fiber product that incorporate the
Plaintiff MS Trademark. As a result, Plaintiff MS has been compelled to notify Ebay and to

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have various listings by distributors/sellers of Glinsky Companies Skinny Fiber product

removed. [See Exhibit 14].
Furthermore, Glinsky Companies have asserted that the product sold by Plaintiff MS is
fake. [See Relevant Facts, 66-67]. Despite the fact that the labels on Glinsky Company
bottles and Plaintiff MS bottles are substantially similar, the Glinsky Companies have altered
the original formula that is owned by Plaintiff MS and associated with the Trademark. [See
Relevant Facts, 74]. Because there is evidence of improper labeling by Glinsky Companies of
their bottles of Skinny Fiber, Plaintiff MS runs the risk of its own Skinny Fiber product being
associated with non-conforming goods.
As a result of the aforementioned facts, there is a clear and present danger of the
imminent loss of goodwill, reputation and competitive market position conclusively
demonstrating that the harm here is irreparable. See Dominion Video Satellite, Inc., 356 F.3d at
1263. It is likely that the Court would be unable to grant an effective monetary remedy after a
full trial because such damage would be inadequate or difficult to ascertain. See Tri-State
Generation & Transmission Assoc., Inc., v. Shoshone River Power, Inc., 874 F.2d 1346, 1354
(10th Cir. 1989).
2.

The threatened injury to Plaintiff MS outweighs whatever injury the proposed injunction
may cause Glinsky or the Glinsky Companies.
To be entitled to a preliminary injunction, the movant has the burden of showing that the

threatened injury to the movant outweighs the injury to the other party under the preliminary

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injunction. Kikumura, 242 F.3d at 955. This is often referred to as the balance of harms test.
Heideman, 348 F.3d at 1190-91.
At first blush, a court might be tempted to compare the purely monetary consequences of
granting the injunction versus not granting the injunction in determining whether the injury to the
movant outweighs the injury the proposed injunction may cause to the non-moving party; but
monetary considerations were conclusive, then no injunction could ever be granted in any case
since purely quantifiable monetary damages cannot, alone, provide the basis for the granting of
an injunction.
In this case, Plaintiff MS has clearly established that it owns the Trademark. Defendants
have no right to use the Trademark. Yet, Glinsky Companies are competing against Plaintiff MS
in the marketplace by selling a version of Skinny Fiber supplements packaged in very nearly
identical labeling that incorporates the Trademark. There is no question that Glinsky Companies
actions are causing confusion in the marketplace (as proved by the Amazon and Ebay
communications). There is great injury, therefore, to Plaintiff MS and its rights as the legitimate
owner of the Trademark.
As to the injury to Defendants if the injunction is granted, Plaintiff MS acknowledges
that such an injunction would prevent Glinsky and Glinsky Companies from selling their Skinny
Fiber product. However, Glinsky and his companies are not entitled to the benefit of the
Trademark in the first placeand never have been. There can be no injury to Glinsky and his
companies from the grant of the injunction because they would not be denied any right or
property that they are entitled to rightfully enjoy or hold; rather, they would simply be prevented
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from misappropriating Plaintiff MS rights and property. In short, there is no legal injury to a
party that is merely prevented from misappropriating another partys rightful intellectual
property.
Admittedly, Defendants will lose money from lost salesbut it would be unreasonable to
allow Defendants to continue to benefit from their bad faith and illegal actions. Glinsky knew
that the product would be a huge success, so he terminated the Final Agreement on the day
following the launch of the Skinny Fiber product. Glinsky co-opted the Trademark and Formula
belonging to Plaintiff MS and proceeded to sell millions of bottles of Skinny Fiber but never
paying royalties to Beauchesne and Morrow (who, in turn, were to compensate Plaintiff MS for
the licensing of the Trademark).
Recently, Glinsky schemed to file a duplicate of Plaintiff MS Skinny Fiber Trademark
as that mark when that mark was within months of expiring.1 Only when his plan failed, did he
make the flimsy assertion that he somehow owned the Trademark. This bad faith explains
why Glinsky waited years before claiming ownership of the Trademark in the face of two cease
and desist letters from Beauchesne. Glinsky attempted to hide his underhanded actions from
Plaintiff MS (which explains why he informed the original manufacturer, Nova Ship, that he and
Beauchesne were still in business together). It is inexplicable why Glinsky would remain silent
for almost five years and do nothing if the Trademark had actually been transferred to him
particularly given the fact that he was actively selling product incorporating the Trademark.
Glinsky and Glinsky Company have no legitimate claim to the Trademark, yet have sold
1

Plaintiff MS was aware of the deadline to file for a Combined Declaration of Use and Incontestability under
Sections 8 & 15 and timely did sothus maintaining the Trademark.
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Case 2:15-cv-00630-RJS-DBP Document 9 Filed 09/25/15 Page 20 of 23

millions of bottles without paying for such use. Issuance of the injunction is appropriate
because Glinsky and Glinsky Company are not entitled to exploit the Trademark and any injury
to them would merely result in a cessation of improper activity.
3.

The injunction, if issued, would not be adverse to the public interest.

A movant also has the burden of demonstrating that the injunction, if issued, is not

adverse to the public interest. Kikumura, 242 F.3d at 955.

In the instant matter, the issuance of an injunction against Defendants Glinsky and
Glinsky Companies would have no effect upon the public interest. To the contrary, the fact
that Defendants have altered the original formula without changing the label that was associated
with the original formula is potentially adverse to public interest and may violate federal law (i.e.
Nutrition Labeling and Education Act of 1990, The Dietary Supplement Health and Education
Act of 1994 and associated federal regulations). Moreover, there is significant confusion in the
market, because the labels Glinsky is using on his product are substantially the same as the labels
being used by MS, containing MS productthe public interest will be served by eliminating
this confusion in favor of the true owner of the Trademark.
4.

There is a substantial likelihood that Plaintiff MS will prevail on the merits of the
underlying case.
To prevail on a trademark infringement claim, Plaintiff MS must show that its trademark

was used in commerce by the Defendants without the registrants consent, and that the use is
likely to deceive, cause confusion, or result in mistake. Tsunami Softgoods v. Tsunami Int'l, 2001

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Case 2:15-cv-00630-RJS-DBP Document 9 Filed 09/25/15 Page 21 of 23

U.S. Dist. LEXIS 22277, 2001 WL 670926 (D. Utah Jan. 19, 2001). These factors are fully
satisfied here.
As set forth in relevant facts section of this Motion:
(1)

Plaintiff MS has never sold or transferred ownership of the Skinny Fiber Trademark;

(2)

Beauchesne rejected the initial draft of the agreement because it listed the Skinny Fiber
Trademark as an asset to be transferred (see Exhibit 6);

(3)

Plaintiff MS was not a party to the Final Agreement (see Exhibit 7);

(4)

The Trademark is not listed or designated as an asset to be purchased by Glinsky in the

Final Agreement (see Exhibit 7);

(5)

Beauchesne and Morrow both understood that the Final Agreement did not effectuate a
transfer of the Trademark;

(6)

Neither Beauchesne nor Ziglar ever agreed (on behalf of Plaintiff MS) to transfer
ownership of the Trademark to any other party;

(7)

Glinsky and the Glinsky Companies never opposed, canceled or attempted to challenge
Plaintiff MSs ownership of the Trademark via petition with the United States Patent and
Trademark Office (USPTO) or court action, despite the issuance of cease and desist
letters, and, despite the issuance of cease and desist letters, Glinsky and the Glinsky
Companies never claimed to MS for over four years that it had ownership of the
Trademark, until its attempt to file for the Trademark was dismissed;

(8)

The USPTO accepted Plaintiff MS Section 8 & 15 declarations on July 8, 2015,

confirming both ongoing use and incontestability of the Trademark (see Exhibit 2);
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Case 2:15-cv-00630-RJS-DBP Document 9 Filed 09/25/15 Page 22 of 23

(9)

After attempting to file the exact same mark as the Trademark already owned by Plaintiff
MS, the USPTO issued an Office Action to applicant Defendant RJ Worldwide, LLC on
July 21, 2015 requiring RJ Worldwide, LLC to respond to the issue of likelihood of
confusion with Plaintiff MS legitimate and active Trademark (see Exhibit 13);

(10)

Glinsky Companies changed the formula for the product and yet never changed the label
on the product, creating confusion with the product that Plaintiff MS is currently selling.
Based on the foregoing incontestable facts, there is a substantial likelihood that Plaintiff

MS will prevail on the merits of its trademark infringement claim.

CONCLUSION
Plaintiff MS meets the requirements for issuance of a temporary restraining order and
preliminary injunction against Defendants. Plaintiff MS respectfully requests that the Court grant
its Motion for Temporary Restraining Order and Preliminary Injunction.
SIGNED AND DATED September 25, 2015.
HEIDEMAN & ASSOCIATES
/s/ Justin R. Elswick
JUSTIN R. ELSWICK
Attorney for Attorneys for Plaintiffs Master
Strategies, LLC and AAM Investments, LLC

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Case 2:15-cv-00630-RJS-DBP Document 9 Filed 09/25/15 Page 23 of 23

CERTIFICATE OF SERVICE
On September 25 2105, a true and correct copy of the foregoing MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION was served
on the following:
Party/Attorney
Attorneys for Defendants

Method

Chris Polychron
Seyamack Kouretchian
COAST LAW GROUP, LLP
1140 South Coast Highway 101
Encinitas, CA 92024

X
X

Hand Delivery
U.S. Mail postage prepaid
Overnight Mail
Fax Transmission
Email
Electronic Court Filing

Email: cpolychron@coastlawgroup.com
skouretchian@coastlawgroup.com
Phone: (760) 942-8505
Fax: (760) 942-8515
/s/ Wendy Poulsen
WENDY POULSEN
Legal Assistant

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