Fitco v. Arty Water Company - Artichoke Your Way Into Skinny Jeans PDF

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 1 of 13
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Ann-Martha Andrews
State Bar No. 7585
E-mail: AAndrews@LRRLaw.com
LEWIS ROCA ROTHGERBER LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: 702.949.8200
Fax: 702.949.8398
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Jason M. Kerr
State Bar No. 7773
E-mail: jasonkerr@ppktrial.com)
PRICE PARKINSON & KERR
5742 W. Harold Gatty Dr.
Salt Lake City, Utah 84116
Telephone: (801) 530-2900
Facsimile: (801) 530-2957
Attorneys for Plaintiff
3993HowardHughesPkwy,Suite600
LasVegas,NV891695996
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
FITCO, LLC, a Utah limited liability company,
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Plaintiff,
COMPLAINT AND JURY DEMAND

vs.
ARTY WATER COMPANY, INC., a Texas
corporation,
Defendant.
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Plaintiff FitCo, LLC (Plaintiff) complains of Defendant Arty Water Company,

Inc. (Defendant) as follows:
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CASE NO.
INTRODUCTION
Defendant operates a website that uses, without authorization, Plaintiffs
trademarked and copyrighted images and a verbatim copy Plaintiffs copyrighted
advertisements in order to promote Defendants own product. Defendants brazen theft of
Plaintiffs intellectual property even includes using the photograph of Plaintiffs
endorsement partner Jennifer Lopez, the famous actor, television personality, and singer.
Defendant stole Plaintiffs intellectual property in order to drive traffic to its Website and
increase its sales.
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under its BodyLab brand. Plaintiff has invested substantial time, money, and effort into
developing and marketing its BodyLab brand and related products. Plaintiff operates a
website on which it posts information about the health and fitness benefits of the
BodyLab products and other related health and fitness information. Plaintiff recently
posted an article on its BodyLab website that touts the health benefits of artichokes,
which is an ingredient in various BodyLab products.
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Plaintiff develops, manufactures, and markets various health and fitness products
Defendant sells a product called ARTY Artichoke Water (Arty Water) that,
according to Defendants website, contains artichokes. Defendants website uses
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Plaintiffs intellectual property, including a verbatim copy of Plaintiffs artichoke article
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from Plaintiffs website and actual images of Plaintiffs trademarks, in order to promote
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Defendants own Arty Water product. Defendants website leads an unwitting internet
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browser to believe that Plaintiffs intellectual property and branding associated with
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Plaintiffs BodyLab brand are associated in some way with Defendants Arty Water.
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When viewing Defendants website and when contemplating a purchase of Defendants
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Arty Water product, an unwitting consumer is thus led to believe that the Arty Water
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product is part of Plaintiffs carefully-developed and marketed BodyLab brand.
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Defendant thus capitalizes on the goodwill of Plaintiffs well-known brand and
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carefully-developed intellectual property in order to promote its own Arty Water product
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that has nothing to do with Plaintiffs proprietary BodyLab brand. Defendants actions
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violate the Lanham Act, the Copyright Act, and various common law doctrines and entitle
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Plaintiff to the relief set forth below.

PARTIES, JURISDICTION, AND VENUE
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1.
Plaintiff FitCo, LLC (Plaintiff) is a limited liability company organized
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and existing under the laws of the State of Utah. Its principal place of business is located
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at 5742 West Harold Gatty Drive in Salt Lake City, Utah. It is the owner of the intellectual
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property associated with the BodyLab brand and products.
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Defendant Arty Water Company, Inc. (Defendant) is, on information and
belief, a corporation organized and existing under the laws of Texas. On information and
belief, it sells, warehouses, and ships this product from a location in Clark County,
Nevada.
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2.
Subject matter jurisdiction over this action is conferred upon this Court by 28
U.S.C. 1338 and the Lanham Act, 15 U.S.C. 1121.

4.
This Court has supplemental jurisdiction over Plaintiffs state-law claims
pursuant to 28 U.S.C. 1367, in that the state law claims are integrally related to the
federal claims and arise from a common nucleus of operative facts, such that the resolution
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of all claims herein is in the interests of judicial economy. The Court also has subject
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matter jurisdiction pursuant to 28 U.S.C. 1332 because there is complete diversity and
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the amount in controversy exceeds the requisite amount.
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5.
The Court has personal jurisdiction over Defendant pursuant to the Nevada
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Long-Arm Statute, Nev. Rev. Stat. 14.065 because Defendant has (a) transacted business
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in this State, and (b) engaged in tortious activity causing injury in this state. Specifically,
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the Defendant sells, warehouses, and ships its Arty Water product sold through
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Amazon.com from a location in the State of Nevada.
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6.
Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) and (c).

GENERAL ALLEGATIONS
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The BodyLab Brand

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Plaintiff is engaged in the business of marketing and selling fitness and
health products, including products marketed under its BodyLab brand.

8.
BodyLab products are desired by customers and are supported by credible
scientific evidence.
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Plaintiffs BodyLab products are formulations based upon scientific studies
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and other data and are formulated to be safe and effective. They are formulated especially
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for womens bodies. In addition, Plaintiff invests substantial sums to assure that its
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BodyLab products are manufactured to very high standards so that these products meet
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or exceed the quality and other characteristics of the compounds identified in the scientific
literature, which support the products efficacy.
Plaintiff is so confident in its business model that for every BodyLab
product it develops and brings to market it offers a 100% money-back guarantee. All a
consumer need do if dissatisfied with the product for any reason is, in accordance with the
guarantee, return the unused portion for a full refund. Plaintiff always honors and fulfills
its 100% money-back guarantee in accordance with the terms of that guarantee.
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10.
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Plaintiff sells its BodyLab products through its BodyLab website
(www.bodylab.com), to retailers that market and sell to consumers throughout the United
States, and through independent distributors located throughout the United States.
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Plaintiff advertises and promotes its BodyLab products in numerous print
media in national circulation, on the BodyLab website, and on third party websites.
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Plaintiff uses its BodyLab website not only to promote BodyLab branded
products but also to promote general health and fitness and healthy lifestyle in general.
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Plaintiff markets and sells its BodyLab products under the trademark
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BodyLab through such prestigious retail outlets as Walgreens, Wal-Mart, Kohls, CVS
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and others.
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15.
Plaintiff has expended a great deal of time, effort, and money to market,
advertise, and promote its BodyLab brand and products.

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Plaintiffs BodyLab products have developed a reputation of high quality
and goodwill in the industry and the consuming public.

17.
Plaintiffs BodyLab products have been endorsed by Jennifer Lopez, a
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well-known celebrity who promotes health and fitness among her many fans. Among
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other things, Plaintiff uses copyrighted images of Jennifer Lopez to promote the
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BodyLab brand.
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The BodyLab trademark was adopted for use in interstate commerce on
September 17, 2014.
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Plaintiff is the exclusive licensee of the BodyLab trademark from JBCO IP
Holdings, LLC, which, in turn, acquired the rights to this trademark from Western
Holdings, LLC. Plaintiff is the current, active, and exclusive licensee of all BodyLab
trademarks, trade dress, and copyrights. As a consequence, Plaintiff is the proper party in
an action to protect BodyLab trademarked products.
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Plaintiff has a common law copyright in the packaging for BodyLab
products.
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BodyLab is an arbitrary word chosen by Plaintiff as its trademark due to its
uniqueness.
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Trade dress for the BodyLab products either has acquired a secondary
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meaning to the consumers or is so distinctive in nature that no secondary meaning is
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required.
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Closely associated with the BodyLab brand and trademark is the trademark
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For Women By Women. This trademark appears alongside the BodyLab mark in
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many of Plaintiffs publications, including its website, to promote the BodyLab brand
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and products.
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The For Women By Women trademark was adopted for use in interstate
commerce on November 26, 2014.

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Plaintiff is the exclusive licensee of the For Women By Women trademark
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from JBCO IP Holdings, LLC. Plaintiff is the current, active, and exclusive licensee of all
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BodyLab trademarks, trade dress, and copyrights. As a consequence, Plaintiff is the
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proper party in an action to protect For Women By Women trademarked products.
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Plaintiff has expended a great deal of time, effort, and money developing its
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intellectual property rights in connection with the BodyLab brand, including the
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trademark, packaging trade dress, copyrighted label, copyrighted package insert, and
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copyrighted advertisements and articles that have appeared in numerous newspapers and
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magazines, as well as on Plaintiffs BodyLab website (www.bodylab.com).
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Defendants Website
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Website).
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Attached hereto as Exhibit A is a true and correct copy of the main page (the
Main Page) for the Website (the first page an internet browser sees upon going to the
Website).
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Also on the News Page is an image of Jennifer Lopez, together with another
copy, next to Lopezs image, of Plaintiffs trademarks.
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Below the date and title is a prominently-displayed copy of Plaintiffs
BodyLab and For Women By Women trademarks.
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Scrolling down the News Page leads to a post dated 19 Nov 2014 and
titled Artichoke Your Way Into Smaller Jeans.
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Clicking on the News link at the top of the Main Page takes one to the
page a copy of which is attached hereto as Exhibit B (the News Page).
Defendant owns and operates the website www.artywater.com (the
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Plaintiff holds the copyright and trademark right to this image of Jennifer
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Clicking on the BodyLab trademark, the image of Jennifer Lopez, the
Lopez.
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Artichoke Your Way Into Smaller Jeans title, or a Read More link takes one to the
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page a copy of which is attached hereto as Exhibit C (the Artichoke Article Page).
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As of December 24, 2014, a browser can also reach the Artichoke Article
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Page by clicking on a Artichoke Your Way Into Smaller Jeans link near the top of the
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News Page listed under a Recent Posts heading.
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36.
The Artichoke Article Page contains Plaintiffs BodyLab trademark,
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Plaintiffs For Women By Women trademark, and Plaintiffs copyrighted image of
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Jennifer Lopez promoting the BodyLab brand.
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The Artichoke Article Page also contains a verbatim copy of an article for
which Plaintiff holds the copyright.
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At the bottom of the Artichoke Article Page is the statement: You can buy
ARTY Artichoke Water on amazon.com followed by a link to the www.amazon.com
website where one can purchase the Arty Water product.
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The News Page of the Website displays at least two images of the
BodyLab trademark, at least two images of the For Women By Women trademark,
and one image of Jennifer Lopez (in which she is promoting the BodyLab brand) to
which Plaintiff owns the copyright.
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The Artichoke Article Page of the Website displays at least two images of
the BodyLab trademark, at least two images of the For Women By Women trademark,
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and one image of Jennifer Lopez (in which she is promoting the BodyLab brand) to
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which Plaintiff owns the copyright.
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41.
The Artichoke Article Page of the Website also contains a verbatim copy of
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an article entitled Artichoke Your Way Into Smaller Jeans posted on Plaintiffs own
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website on or about November 11, 2014 (Plaintiffs Artichoke Article). A copy of
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Plaintiffs Artichoke Article as it appears on Plaintiffs own BodyLab website
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(www.bodylab.com/blog/artichoke-your-way-into-smaller-jeans/) is attached hereto as
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Exhibit D.
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42.
Plaintiff has a common law copyright to Plaintiffs Artichoke Article.
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43.
Defendant has no right to use Plaintiffs trademarks, trade dress, copyrights,
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images, articles, advertisements, or any other intellectual property associated with the
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BodyLab brand.
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Defendant has no right to market the BodyLab brand in any way on its
Website.
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Defendant has no right to use the BodyLab brand and associated
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intellectual property in any way to promote its own products, including the Arty Water
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product.
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46.
Defendant has no right to use Plaintiffs Artichoke Article on its Website.
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FIRST CLAIM FOR RELIEF
(Trademark Infringement under the Lanham Act)
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47.
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 46
above, as though set forth fully in this count.

48.
Plaintiff is the current, active, and exclusive licensee of all BodyLab and
For Women By Women valid and legally protected trademarks, trade dress, and
copyrights. The trademarks are active, valid and have not been revoked or canceled. In
addition, the trademarked terms are arbitrary words chosen by Plaintiff as its trademarks
due to their uniqueness and Plaintiffs trade dress either has acquired a secondary meaning
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to the consumers or is so distinctive in nature that no secondary meaning is required. As
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such, BodyLab and For Women By Women are protectable service marks.
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49.
Defendant used and is using Plaintiffs trademarks in commerce without
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Plaintiffs consent and Defendants use is likely to deceive, cause confusion, or result in
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mistake as to the origin, authenticity, genuineness and quality of BodyLab and For
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Women By Women products.
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50.
Defendants unauthorized use of Plaintiffs trademarks has damaged and
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materially diminished the value of Plaintiffs trademarks and copyright rights, and
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interfered with Plaintiffs existing and potential business relations.
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51.
Defendants unauthorized use of Plaintiffs trademarks has infringed upon
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Plaintiffs trademarks, trade names and copyright rights, in violation of 15 U.S.C. 1114
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and 1125(a).
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52.
As a result of Defendants conduct, Plaintiff has suffered damages that
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include but are not limited to lost sales of its products, trademark infringement and
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dilution, and damage to Plaintiffs existing and potential business relations. In addition,
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pursuant to 15 U.S.C. 1117(a), Plaintiff is entitled to an award of attorneys fees.
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SECOND CLAIM FOR RELIEF
(Copyright Infringement under the Copyright Act)
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53.
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 52
above, as though set forth fully in this count.

54.
Plaintiff is the licensee of the copyright in the BodyLab and For Women
By Women products packaging.

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Plaintiff holds a copyright to the image of Jennifer Lopez displayed on the
News Page and the Artichoke Article Page of Defendants Website.
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Plaintiff also has common law copyright to Plaintiffs Artichoke Article.
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57.
Defendants unlawful advertisements and sales and/or copying of Plaintiffs
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copyrighted product packaging, advertising, product inserts, and/or Plaintiffs Artichoke
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Article is an unlawful copying of protected elements of Plaintiffs copyrighted materials in
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violation of 17 U.S.C. 101, et. seq.
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58.
As a result of Defendants conduct, Plaintiff has suffered damages that
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include but are not limited to lost sales, trademark and copyright infringement and dilution,
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and damage to Plaintiffs existing and potential business relations.
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THIRD CLAIM FOR RELIEF
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(Unfair Competition in violation of Lanham Act 15 U.S.C. 1125(a)(1)(A)
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59.
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Plaintiff realleges paragraphs 1 through 58 of this Complaint as if set forth in
full herein.
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Defendant has without authorization, on or in connection with the promotion
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and sale of its goods in interstate commerce, made or contributed to the making of
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representations of fact which are likely to cause confusion, or to cause mistake, or to
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deceive purchasers and potential purchasers into believing that Defendants products and
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services are the same as Plaintiffs products and services and that Plaintiffs BodyLab
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and For Women By Women products are available for purchase from Defendant.
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61.
Defendants acts constitute unfair competition and passing off, and/or induce
or contribute to acts of unfair competition and passing off.

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Upon information and belief, Defendants acts of unfair competition and
passing off have led to, among other things, initial interest confusion in consumers
stemming from Defendants unlawful use of Plaintiffs intellectual property.
63.
Upon information and belief, Defendants acts of unfair competition and
passing off have deceived and, unless restrained, will continue to deceive the public,
including consumers and retailers, and have injured and unless constrained will continue to
injure plaintiffs and the public, including consumers and retailers, causing damages to
Plaintiff in an amount to be determined at trial and other irreparable injury to the goodwill
and reputation of Plaintiff and its products.
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62.
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Upon information and belief, Defendants acts of unfair competition are
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willful, intentional and egregious and make this an exceptional case within the meaning of
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15. U.S.C. 1117(a).
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65.
Plaintiff has no adequate remedy at law to compensate it for all the damages
the Defendants wrongful acts have and will cause.
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FOURTH CLAIM FOR RELIEF
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(Unjust Enrichment)
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66.
full herein.
67.
Defendant has benefited from the use of Plaintiffs name, reputation, and
goodwill without compensating Plaintiff.

68.
Defendants conduct, directly or through an agent or affiliate, constitutes
unjust enrichment to Defendant.

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By virtue of Defendants unjust enrichment, Plaintiff has suffered money
damages.
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FIFTH CLAIM FOR RELIEF
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(Injunctive Relief)
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70.
full herein.
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Defendant has engaged in deceptive trade practices in violation of the
Lanham Act.
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Defendants acts will continue to deceive the public, including consumers
and retailers, unless the Court enjoins Defendant from advertising, marketing, packaging,
labeling, or purporting to sell any product that it in fact has no intention to sell or from
engaging in any other false advertising with regard to Plaintiffs intellectual property and
products or engaging in any other unfair competition based upon false and misleading or
confusing statements related to Plaintiffs products and intellectual property.
SIXTH CLAIM FOR RELIEF
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(Declaratory Relief)
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73.
full herein.
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Based on the allegations contained in this Complaint, there is a present and
actual need for a judicial declaration.

75.
Pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201, Plaintiff is
entitled to and hereby moves the Court for a judgment declaring that:
a.
Defendants advertising is illegal, confusing, likely to confuse or
otherwise misleading.
b.
Plaintiff has a legally protectable interest in preventing Defendants
advertising.
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c.
Plaintiff has suffered real harm as a result of Defendants advertising.
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d.
Defendants advertising is likely to confuse the public into believing
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that Defendant is authorized to sell Plaintiffs products and/or that the public may in
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fact order Plaintiffs products through the Website.
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e.
Defendant should pay Plaintiff its attorneys fees and costs incurred in
prosecuting this action.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests the following relief:
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A.
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employees, and attorneys, and upon those persons in active concert or participation with it
who receive actual notice of the injunction by personal service or otherwise, enjoining and
restraining them from directly or indirectly:
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Advertising, marketing, packaging, labeling, or selling any
BodyLab or For Women By Women products;
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2.
Publishing, displaying, distributing, disseminating or using, or
permitting or entering into or performing any agreement for the publication,
display, distribution, or use of any of Plaintiffs trademarked and/or copyrighted

images, advertisements, articles, or products; or
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A permanent injunction against Defendant, its officers, agents, servants,
3.
Publishing, displaying, distributing, disseminating or using, or
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permitting or entering into or performing any agreement for the publication,
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display, distribution, or use of any advertising that contains any mention or
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reference to the trademark names BodyLab and For Women By Women.
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B.
An order requiring Defendant to immediately remove all BodyLab and For
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Women By Women trademarks, images of Jennifer Lopez, Plaintiffs Artichoke Article,
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and all other uses of Plaintiff intellectual property from the Website.
C.
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Judgment on all claims for the damages suffered by Plaintiff as a result of
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Defendants unfair competition and deceptive acts and practices, in an amount to be
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determined at trial.
D.
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Judgment directing an accounting by Defendant of its profits by reason of its
unfair competition and deceptive acts and practices.

E.
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Judgment on the Third (Unfair Competition under the Lanham Act) claim for
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relief trebling Plaintiffs recovery pursuant to 15 U.S.C. 1117, as a result of Defendants
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willful and intentional violations.

F.
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Judgment on the Third (Unfair Competition under the Lanham Act) claim for
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relief awarding Plaintiffs reasonable attorneys fees in this action, pursuant to 15 U.S.C.
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1117.
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G.
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sustained by the Plaintiff and the costs of the action.

H.
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Judgment for punitive damages as a result of Defendants outrageous
conduct and willful and intentional violations.

I.
Judgment on all claims awarding Plaintiffs costs and attorneys fees in this
J.
Declaratory relief as requested.
K.
Injunctive Relief as requested.
L.
Such other relief as the Court may deem just and equitable.
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Judgment awarding Defendants profits to Plaintiff, and awarding damages
action.
DEMAND FOR JURY TRIAL
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Plaintiff demands a trial by jury of all matters that may be tried by a jury.
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DATED this 16th day of January 2015.
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By: /s/Ann-Martha Andrews

Ann-Martha Andrews
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Jason M. Kerr
PRICE PARKINSON & KERR
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Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
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I hereby certify that on January 16, 2015, I electronically transmitted the attached
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document to the Clerks Office using the CM/ECF System for filing.
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/s/ M. McGrath
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Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 1 of 13

UNITED STATES DISTRICT COURT

COMPLAINT AND JURY DEMAND

Plaintiff FitCo, LLC (Plaintiff) complains of Defendant Arty Water Company,

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 2 of 13

which is an ingredient in various BodyLab products.

Plaintiffs intellectual property, including a verbatim copy of Plaintiffs artichoke article

When viewing Defendants website and when contemplating a purchase of Defendants

product is part of Plaintiffs carefully-developed and marketed BodyLab brand.

Defendant thus capitalizes on the goodwill of Plaintiffs well-known brand and

Plaintiff to the relief set forth below.

Plaintiff FitCo, LLC (Plaintiff) is a limited liability company organized

property associated with the BodyLab brand and products.

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 3 of 13

Defendant Arty Water Company, Inc. (Defendant) is, on information and

U.S.C. 1338 and the Lanham Act, 15 U.S.C. 1121.

This Court has supplemental jurisdiction over Plaintiffs state-law claims

the amount in controversy exceeds the requisite amount.

Amazon.com from a location in the State of Nevada.

Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) and (c).

The BodyLab Brand

Plaintiff is engaged in the business of marketing and selling fitness and

health products, including products marketed under its BodyLab brand.

BodyLab products are desired by customers and are supported by credible

Plaintiffs BodyLab products are formulations based upon scientific studies

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 4 of 13

literature, which support the products efficacy.

Plaintiff is so confident in its business model that for every BodyLab

Plaintiff sells its BodyLab products through its BodyLab website

Plaintiff advertises and promotes its BodyLab products in numerous print

advertise, and promote its BodyLab brand and products.

Plaintiffs BodyLab products have developed a reputation of high quality

and goodwill in the industry and the consuming public.

Plaintiffs BodyLab products have been endorsed by Jennifer Lopez, a

The BodyLab trademark was adopted for use in interstate commerce on

September 17, 2014.

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 5 of 13

Plaintiff is the exclusive licensee of the BodyLab trademark from JBCO IP

an action to protect BodyLab trademarked products.

Plaintiff has a common law copyright in the packaging for BodyLab

BodyLab is an arbitrary word chosen by Plaintiff as its trademark due to its

meaning to the consumers or is so distinctive in nature that no secondary meaning is

commerce on November 26, 2014.

Plaintiff is the exclusive licensee of the For Women By Women trademark

BodyLab trademarks, trade dress, and copyrights. As a consequence, Plaintiff is the

proper party in an action to protect For Women By Women trademarked products.

magazines, as well as on Plaintiffs BodyLab website (www.bodylab.com).

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 6 of 13

copy, next to Lopezs image, of Plaintiffs trademarks.

Below the date and title is a prominently-displayed copy of Plaintiffs

BodyLab and For Women By Women trademarks.

titled Artichoke Your Way Into Smaller Jeans.

page a copy of which is attached hereto as Exhibit B (the News Page).

Defendant owns and operates the website www.artywater.com (the

Clicking on the BodyLab trademark, the image of Jennifer Lopez, the

News Page listed under a Recent Posts heading.

The Artichoke Article Page contains Plaintiffs BodyLab trademark,

Plaintiffs For Women By Women trademark, and Plaintiffs copyrighted image of

Jennifer Lopez promoting the BodyLab brand.

which Plaintiff holds the copyright.

Case 2:15-cv-00096-RFB-GWF Document 1 Filed 01/16/15 Page 7 of 13

ARTY Artichoke Water on amazon.com followed by a link to the www.amazon.com