On September 28, 2015, Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”), a Georgia corporation, brought a trademark infringement action against Dynamic Sports Nutrition, LLC d/b/a Anabolic Research (“Dynamic”), and Brian Clapp (“Clapp”) (collectively Dynamic and Clapp are referred to as “Defendants”). The complaint asserts claims for trademark infringement, false designation of origin and unfair competition (state and federal), false advertising, deceptive trade practices, and Georgia RICO violations.
Hi-Tech, according to the complaint, “is a producer of high quality dietary supplements, including numerous products designed for muscle and body building, such as testosterone boosters, muscle-gainers, muscle preservation products, and legal hormone boosters.” The complaint relates to DIANABOL® - “a muscle preservation dietary supplement for consumers seeking to gain muscle.” Hi-Tech owns the registration to this mark (
U.S. Reg. No. 3,378,354).
Dynamic has sought a trademark for D-Anabol 25 (
U.S.Serial No. 85/280,036), which was denied by the USPTO based on the DIANABOL® mark. The below image pictures the products of the two companies side by side.
The Hi-Tech Complaint paints a comprehensive picture quoting the USPTO's Office Action denying registration in paragraphs 23 and 24:
Online literature and/or advertisements for applicant’s product [DSN’s D-ANABOL] demonstrate that applicant’s and registrant’s [Hi-Tech’s] goods are: (1) marketed through the same channels; (2) directed to the same potential customers; and (3) even promoted as comparable competing products wherein they provide, in part, ‘If you are looking to buy Dinabol … online, our D-anabol 25 is exactly what you need. . . . The dominate feature of the applicant’s mark is nearly identical in appearance to registrant’s mark. The letter I is merely replaced with a hyphen.
Hi-Tech cites a number of different websites used by Defendants to promote the product, including
www.BuySteroids.com,
www.Steroid.com, and
www.RoidStore.com. Communications between representatives of Hi-Tech and Clapp are referenced that illustrate, according to the complaint, a pattern of deception regarding Clapp’s relationship with Dynamic and his interest protecting intellectual property rights. After Hi-Tech learned of Clapp’s relationship, the complaint asserts that Clapp asserted that D-ANABOL 25 had an earlier first use date and that Dynamic continued to use that mark even after the claimed misperception of first use date was straightened out.
In paragraphs 56 through 123, the complaint set forth detailed allegations of specific false advertising claims alleged to have been made by Dynamic, including the mischaracterization of ingredients used in Dynamic products and the effect of the disclosed ingredients. It remains to be seen whether the opening foray in this litigation will be vigorously opposed or the suit will be quickly settled, as often occurs with trademark lawsuits.
The case is Hi-Tech Pharmaceuticals, Inc. v. Dynamic Sports LLC, et al., No. 1:15-cv-03393-MHC, filed 09/28/15 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and assigned to U.S. District Judge Mark H. Cohen.
