Case 3:15-cv-01947-BEN-WVG Document 1 Filed 09/01/15 Page 1 of 15

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Seyamack Kouretchian (State Bar No. 171741)

Andrea Jones (State Bar No. 279791)
COAST LAW GROUP, LLP
1140 S. Coast Hwy. 101
Encinitas, California 92024
Tel: (760) 942-8505
Email: SKouretchian@CoastLawGroup.com
Email: AJ@CoastLawGroup.com
Attorneys for Plaintiff,
Ben Glinsky, an individual

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BEN GLINSKY,

Case No.

COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF FOR:

an individual

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Plaintiffs,

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vs.

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WENDY BONGALIS-ROYER, an
individual; TRIM DOWN GLOBAL,
LLC, an Ohio limited liability
company; and DOES 1 - 500,

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Defendants.

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'15CV1947 BEN WVG

1. Trademark Infringement (15

U.S.C. 1114)
2. Cybersquatting (15 U.S.C.
1125(d))
3. Unfair Competition Under the
Lanham Act (15 U.S.C. 1125)
4. Unfair Competition Under CA
State law (Ca. Bus. & Prof.
17200 et seq.)
DEMAND FOR TRIAL BY JURY

Plaintiff BEN GLINSKY alleges as follows:

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INTRODUCTION

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1.

Plaintiff BEN GLINSKY (GLINSKY) brings this action to

enforce his intellectual property rights by putting a stop to Defendants

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COMPLAINT

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WENDY BONGALIS-ROYER, an individual (ROYER); TRIM DOWN

GLOBAL, LLC, an Ohio Limited Liability Company (COMPANY); and
DOES 1-500 (collectively Defendants), knowing, willful, and intentional
acts to trade on GLINSKYs federally-registered trademarks and goodwill.

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2.

Plaintiff GLINSKYs registered trademarks Trim Down and

Ultra Trim Down (collectively hereinafter referred to as Trim Marks)

were first used in 1989, and subsequently registered in 1991 for use in
connection with vitamins and food supplements, in International Class 5.
The Trim Marks have been used throughout the country, including in the
State of California. The Trim Marks have been maintained for several
decades and are now deemed incontestable pursuant to 15 U.S.C.
1065.
3.

Defendants threaten the substantial goodwill that has

developed in the Trim Marks by using confusingly similar marks in

connection with selling, marketing, and distributing dietary supplements.
Additionally, Defendants ROYER and COMPANY subsequently applied for
trademark registration of Trim Down Fat Burner and Trim Down Fiber
Plus+ (collectively Infringing Marks) on June 10, 2015 to intentionally
infringe upon and cause consumer confusion to GLINSKYs Trim Marks
and competing goods.
4.

Unless Defendants are enjoined from using the Infringing

Marks and other confusingly similar marks, such use will cause consumer
confusion and irreparable harm to GLINSKY.

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COMPLAINT

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5.

This action seeks injunctive relief, damages, and other

appropriate relief arising from Defendants willful acts and wrongful acts of
trademark infringement and unfair competition, among other claims.

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PARTIES
6.

Plaintiff GLINSKY is, and at all relevant times was, a Florida

State resident with business contacts in California, including, but not

limited to, San Diego, California. Plaintiff GLINSKY is the owner of all
rights, title, and interest in the Trim Marks, including its goodwill, and has
invested substantial resources into developing product packaging and
marketing materials to support his business regarding the sale of
supplements by using the Trim Marks.
7.

On information and belief, Defendant ROYER is CEO of

COMPANY and a resident of the State of Ohio. On information and belief,

at all relevant times, ROYER, in her capacity as CEO, was doing business
in the State of California. On information and belief, ROYER is the sole
shareholder of COMPANY and has control over the day-to-day operations
thereof, and directly benefits from the tortious conduct alleged herein. As
sole shareholder, it is hereby alleged upon information and belief that
ROYER has used the COMPANY as a sham to engage in wrongdoing and
conceal impropriety.
8.

On information and belief, Defendant COMPANY is an Ohio

limited liability company with its principal place of business in Cleveland,

Ohio. On information and belief, COMPANY represents itself as having
over 1,000 employees working throughout the world. On information and

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COMPLAINT

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belief, COMPANY conducts business in the State of California by

marketing and selling its products to California consumers.
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associate, or otherwise, of Defendant Does 1 through 500 inclusive

(DOES), are at this time unknown to GLINSKY, who therefore identifies
such Defendants by said fictitious names. Plaintiff GLINSKY is informed
and believes and thereon alleges that said fictitiously named Defendants,
and each of them, are responsible for the events and happenings herein
referred to, and negligently, recklessly, and/or intentionally proximately
caused the injuries and damages alleged herein to GLINSKY.
10.

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Plaintiff GLINSKY is informed and believes and thereon

alleges that at all times relevant hereto that when referred to in the
collective sense Defendants, each Defendant was the agent, affiliate,
officer, director, manager, principal, alter-ego, and/or employee of the
remaining Defendants and was at all times acting within the scope of such
agency, affiliation, alter-ego relationship, and/or employment. Plaintiff
GLINSKY is informed and believes and thereon alleges that at all relevant
times each Defendant actively participated in or subsequently ratified or
adopted, or both, each and all acts or conduct alleged, with full knowledge
of all the facts and circumstances including, but not limited to, full
knowledge of each and all of violations of GLINSKYs rights and the
damages caused to GLINSKY.

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The true names and capacities, whether individual, corporate,

JURISDICTION
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This action arises under the Lanham Act, 15 U.S.C. 1051,

et seq.

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COMPLAINT

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12.

This Court has subject matter jurisdiction pursuant to 15 U.S.C.

1121(a); and 28 U.S.C. 1331, 1338(a), and 1367(a).

13.

Personal jurisdiction over the Defendants is based on the

Defendants being found in the State of California, working as employees in

the State of California, transacting business in this jurisdiction, and/or
intentionally infringing GLINSKYs rights in California and thereby causing
foreseeable injury in this jurisdiction.
14.

Plaintiff GLINSKYs causes of action against Defendants arise

out of Defendants intentional infringement and commercial activities in the

Southern District of California.

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VENUE
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because the events giving rise to this action occurred in this district,
namely Defendants purposefully engaged in and directed activities at this
forum, including willfully infringing GLINSKYs Trim Marks and filing for
application of the Infringing Marks to continue to harass and threaten
GLINSKYs Trim Marks and confuse consumers located in this forum.
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Additionally, Defendants manufacture, market, advertise, sell,

and ship competitive products to consumers and businesses in the

Southern District of California.

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Venue is proper in this court under 28 U.S.C. 1391(b)

FACTUAL BACKGROUND
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For decades, the Trim Marks have been federally registered

trademarks earning substantial goodwill in the nutrition, vitamin, and

dietary supplement industry. On May 8, 1990 the United States Patent and
Trademark Office registered the mark Trim Down (Reg. No. 1594838) for

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use in connection with vitamins and supplements. A true and correct copy
of the Certificate of Registration for the Trim Down trademark is attached
hereto as Exhibit 1.
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On July 30, 1991, the United States Patent and Trademark

Office registered the mark Ultra Trim Down (Reg. No. 1652121) for use
in connection with vitamins and supplements. A true and correct copy of
the Certificate of Registration for the Ultra Trim Down trademark is
attached hereto as Exhibit 3.
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On or around April 17, 2015, Plaintiff GLINSKY was assigned

all rights, title, and interest, in the Trim Marks, including all related
goodwill. A true and correct copy of each Assignment of Trademark is
attached hereto as Exhibit 2 and Exhibit 4 respectively.
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Plaintiff GLINSKY developed product packaging and marketing

materials to sell and distribute Trim Down products to consumers all over
the nation, including those located in the Southern California region.
GLINSKY intends to use the goodwill of the Trim Marks to continue
marketing and selling dietary supplement products.
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Notwithstanding the well-established rights and goodwill in the

Trim Marks, Defendants, in 2014, adopted and used the Infringing Marks
and other confusingly similar marks worldwide.
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Upon

information

and

belief,

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applied

for

registration of the Infringing Marks knowing they would be confusingly

similar to GLINSKYs Trim Marks. Additionally, Defendants use and
advertise GLINSKYs Trim Down trade mark in Defendants domain
names,

including

www.trimdownglobal.com

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Defendants

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COMPLAINT

and

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www.trimdownfiberplus.com

(collectively

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Names)

and

in

connection with selling dietary supplements.

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On May 7, 2015, Defendant COMPANY filed an application

(Serial No. 86622412) in the United States Patent and Trademark Office to
register the mark Trim Down Fat Burner for dietary and nutritional
supplements. Plaintiff GLINSKY alleges this mark is confusingly similar to
the Trim Marks because they both contain the phrase Trim Down and are
targeted to consumers in the health industry seeking to buy supplements.
24.

On June 10, 2015, Defendant COMPANY filed an application

(Serial No. 86657741) in the United States Patent and Trademark Office to
register the mark Trim Down Fat Burner Plus+ for dietary supplements.
Plaintiff GLINSKY alleges this mark is confusingly similar to the Trim
Marks because they both contain the phrase Trim Down and are targeted
to consumers in the health industry seeking to buy supplements.
25.

On or around July 13, 2015, Plaintiff GLINSKY advised

Defendants of their unauthorized use of the confusingly similar marks and

demanded they cease and desist from marketing, and selling any and all
dietary supplements using the Infringing Marks. Defendants refused.
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By way of this complaint, Plaintiff GLINSKY seeks all available

remedies to prevent Defendants from using the Trim Marks and Infringing
Marks to prevent consumer confusion, trademark dilution, and wrongful
interference with its good will.
FIRST CAUSE OF ACTION
FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. 1114)
AGAINST ALL DEFENDANTS

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Domain

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COMPLAINT

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Plaintiff re-alleges the paragraphs set forth above and

incorporates them here by reference.

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Plaintiff

GLINSKYs

federal

conclusive evidence of GLINSKYs ownership of all rights, title, and

interests in the marks, including all its goodwill in connection with vitamin
and dietary supplements.
29.

The Trim Down and Ultra Trim Down marks have become,

through widespread and favorable public acceptance and recognition, an

asset of substantial value as a symbol of goods connected to quality
dietary supplement products. The consuming public recognizes the Trim
Marks and associates them with the dietary supplements.
30.

The Trim Marks are valid and inherently distinctive as applied

to goods that bear the said marks.

31.

Notwithstanding GLINSKYs established rights in the Trim

Marks, Defendants adopted and used the Trim Marks and confusingly
similar marks, including, but not limited to, the Domain Names, in
interstate commerce in connection with the sale and offering for sale of
dietary supplements since on or about March of 2014.
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Defendants sell dietary supplements to the same demographic

as the Trim Marks demographic.

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Plaintiff GLINSKYs use of the Trim Marks have priority of use

over the Defendants Infringing Marks or other confusingly similar marks.

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including

incontestable registrations, of Trim Down and Ultra Trim Down are

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registrations,

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34.

Without consent, Defendants have used the Infringing Marks

and confusingly similar marks, in connection with the sale, offering for
sale, distribution, marketing, or advertising of its goods.
35.

Defendants advertise and offer its goods for sale using the

Infringing Marks and other confusingly similar marks with the intention of
misleading, deceiving, or confusing consumers as to the origin of its goods
and of trading on the Trim Marks goodwill.
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Defendants have engaged in the infringing activity despite

having constructive notice of federal registration rights under 15 U.S.C.

1072 and despite having actual knowledge of GLINSKYs Trim Marks.
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Defendants actions are likely to lead the public to conclude,

incorrectly, that its goods originate with or are authorized by GLINSKY,

which will damage GLINSKY and the public.
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Plaintiff GLINSKY has requested that Defendants ROYER and

COMPANY cease and desist from infringing actions and account for their
profits and sales, but ROYER and COMPANY have failed to comply.
39.

Defendants unauthorized use of the Infringing Marks and other

confusingly similar marks in interstate commerce as described above

constitutes trademark infringement under 15 U.S.C. 1114(a) and is likely
to cause consumer confusion, mistake, or deception.
40.

As a direct and proximate result of Defendants trademark

infringement, GLINSKY has suffered and will continue to suffer loss of

income, profits, and good will. Furthermore, Defendants have and will
continue to unfairly acquire income, profits, and goodwill.

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41.

Defendants acts of infringement will cause further irreparable

injury to GLINSKY if Defendants are not restrained by this Court from

further violation of GLINSKYs rights. Plaintiff GLINSKY has no adequate
remedy at law.
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Plaintiff GLINSKY is entitled to all remedies available under the

Lanham Act, including, but not limited to, preliminary and permanent
injunctions, compensatory damages, treble damages, disgorgement of
profits and sales, costs and attorneys fees.

SECOND CAUSE OF ACTION

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CYBERSQUATTING (15 U.S.C. 1125(d))

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AGAINST DEFENDANTS ROYER AND COMPANY

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Plaintiff re-alleges the paragraphs set forth above and

incorporates them here by reference.

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The federally-registered Trim Marks are distinctive and/or

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famous and were distinctive and/or famous before ROYER and

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COMPANY used the Infringing Marks and the infringing Domain Names.

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45.

The

infringing

Domain

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www.trimdownglobal.com

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confusingly similar to or dilutive of the Trim Marks.

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Names,

www.trimdownfiberplus.com

namely
are

either

On information and belief, Defendants ROYER and COMPANY

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have acted with bad faith and intent to profit from GLINSKYs Trim Marks

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and it associated goodwill by registering, trafficking in, or using the

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infringing Domain Names that are confusingly similar or identical to the

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Trim Marks.

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GLINSKYs Trim Marks has harmed and continues to harm GLINSKYs

ability to generate business and has diminished the value of the Trim
Marks.

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damage to GLINSKY, in an amount to be proven at trial, and is causing

irreparable harm to GLINSKY, for which there is no adequate remedy at
law.
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THIRD CAUSE OF ACTION
UNFAIR COMPETITION UNDER THE LANHAM ACT (15 U.S.C.

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1125(a))

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Defendants ROYER and COMPANYs registration and use of

the infringing Domain Names have caused and will continue to cause

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Defendants ROYER and COMPANYs diversion of traffic from

AGAINST ALL DEFENDANTS

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Plaintiff re-alleges the paragraphs set forth above and

incorporates them here by reference.

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Defendants use of the Infringing Marks, Domain Names, and

other confusingly similar marks in connection with the unauthorized

marketing and sale of products in interstate commerce are likely to cause
confusion, mistake or deception among purchasers and potential
purchasers. Said purchasers are likely to believe that Defendants services
originate from, or are in some way properly connected with, approved,
sponsored, or endorsed by GLINSKY under his Trim Marks.

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violate 15 U.S.C. 1125(a).

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52.

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income, profits, and goodwill and Defendants have and will continue to
unfairly acquire income, profits, and goodwill.
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Court from further violation of GLINSKYs rights. GLINSKY has no

adequate remedy at law.
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FOURTH CAUSE OF ACTION

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UNFAIR BUSINESS COMPETITION VIOLATIONS

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OF CAL. BUS. & PROF. CODE 17200 ET SEQ.

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Defendants acts of unfair competition will cause further

irreparable injury to GLINSKY if Defendants are not restrained by this

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As a direct and proximate result of Defendants unfair

competition, GLINSKY has suffered and will continue to suffer loss of

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Defendants actions constitute federal unfair competition and

AGAINST ALL DEFENDANTS

54.

Plaintiff re-alleges the paragraphs set forth above and

incorporates them here by reference.

55.

Upon information and belief, GLINSKY alleges that the

wrongful acts of the Defendants and each of them constitutes unfair

competition under state law, including without limitation Cal. Business &
Professions Code 17200 et seq.
56.

Upon information and belief, Defendants intentional acts

trademark infringement, and ROYER and COMPANYs cybersquatting,

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COMPLAINT

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are unlawful, deceptive, and/or unfair business acts and/or practices that
constitute unfair competition under California state law.
57.

Defendants acts are likely to deceive the public in that it

misleads the public into thinking that there is an affiliation between

GLINSKY and the Trim Marks and the Defendants, and/or that GLINSKY
endorses the Defendants products and/or business practices.
58.

As a direct and proximate cause of Defendants wrongful

conduct, GLINSKY has sustained and will sustain injury to its business
and property in an amount not yet precisely ascertainable, but which
includes diminution in value of the Trim Marks, and loss of reputation and
goodwill.
59.

Plaintiff GLINSKY is entitled to relief, including full restitution

and/or disgorgement of all revenues, earnings, profits, compensation, and

benefits that may have been obtained by Defendants as a result of such
business acts or practices.
60.

Plaintiff GLINSKY is entitled to a judgment enjoining and

restraining Defendants from engaging in further unfair competition.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff GLINSKY requests this court enter judgment
as follows:
1.

Judgment in favor of GLINSKY on all causes of action;

2.

That the Court order the transfer to GLINSKY all Domain

Names registered to and/or used by Defendants that are confusingly

similar

to

the

Trim

Marks

including,

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not

www.trimdownglobal.com and www.trimdownfiberplus.com;

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but

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COMPLAINT

limited

to,

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3.
against

That the Court issue temporary and permanent injunctive relief

Defendants

and

that

Defendants,

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officers,

agents,

representatives, employees, attorneys, successors, assigns, affiliates and

any persons in active concert or participation of any of them, be enjoined
and restrained from:
a.

Infringing the Trim Marks trademarks; and

b.

Registering, using, or trafficking in any domain names that are

identical or confusingly similar to GLINSKYs Trim Marks;

4.

That the Court order Defendants to file with the Court and

serve on GLINSKY within thirty days after issuance of an injunction a

report in writing and under oath setting forth in detail the manner and form
in which Defendants have complied with the injunction, pursuant to 15
U.S.C. 1116;
5.

That the Court order Defendants to account to GLINSKY for,

and disgorge to GLINSKY, all profits and revenue derived as a result of

the unlawful acts complained of above;
6.

That the Court award GLINSKY actual damages sustained by

Defendants cybersquatting, trebled under 15 U.S.C. 1117, in an amount

to be proved at trial or in the alternative statutory damages of $100,000
per domain name, as elected by GLINSKY;
7.

That the Court award GLINSKY actual damages sustained by

Defendants trademark infringement, trebled under 15 U.S.C. 1117, in an

amount to be proved at trial;
8.

That the Court find this case to be exceptional and award

GLINSKY its attorneys fees pursuant to 15 U.S.C. 1117;

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proven at time of trial.

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Costs of suit and prejudgment interest on all damages;

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That the Court order Defendants to immediately account for all

infringing products;

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For actual damages and Defendants profits in an amount to be

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That the Court order Defendants to immediately recall all

infringing products from the marketplace, which shall include all products
in the possession of all employees, sales representatives, and distributors;
and
13.

That GLINSKY be awarded such other and further relief as the

court deems appropriate.

14.

That the Defendants be jointly and severally liable for the

damages awarded.

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Dated: August 31, 2015

COAST LAW GROUP, LLP

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s/Seyamack Kouretchian
Seyamack Kouretchian
Attorneys for Plaintiff,
Ben Glinsky

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