Case: 3:15-cv-00821 Document #: 1 Filed: 12/22/15 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
EPIC SYSTEMS CORPORATION
a Wisconsin Corporation,
Plaintiff,

Civil No. 15-cv-821

vs.

JURY TRIAL DEMANDED

YOURCAREUNIVERSE, INC., a Delaware

corporation, MEDHOST, INC., a Delaware
corporation, and MEDHOST SOLUTIONS CORP.,
a Delaware corporation.
Defendants.
______________________________________________________________________________
COMPLAINT AND JURY DEMAND
______________________________________________________________________________
Epic Systems Corporation (Epic), for its Complaint against Defendants
YourCareUniverse, Inc., MEDHOST, Inc., and MEDHOST Solutions Corp. (collectively,
Defendants) states and alleges as follows:
THE PARTIES
1.

Epic is a Wisconsin corporation with its principal place of business located at

1979 Milky Way, Verona, Wisconsin 53593.

2.

Upon information and belief, YourCareUniverse, Inc. (YCU) is a Delaware

corporation with a principal place of business located at 6550 Carothers Parkway, Suite 100,
Franklin, Tennessee 37067. YCUs registered agent is The Corporation Trust Company, located
at the Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. YCU was
incorporated as a Delaware corporation on or around January 8, 2015.
3.

Upon information and belief, Medhost, Inc. (Medhost) is a Delaware

corporation with a principal place of business located at 6550 Carothers Parkway, Suite 100,

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Franklin, Tennessee 37067. Medhosts registered agent is The Corporation Trust Company,
located at the Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801.
4.

Upon information and belief, Medhost Solutions Corp. (Medhost Solutions) is a

Delaware corporation with a principal place of business located at 6550 Carothers Parkway,
Suite 100, Franklin, Tennessee 37067. Medhost Solutions registered agent is The Corporation
Trust Company, located at the Corporation Trust Center, 1209 Orange Street, Wilmington, DE
19801.
5.

Upon information and belief, YCU is wholly-owned by Medhost Solutions, and

Medhost Solutions is wholly-owned by Medhost.

6.

Upon information and belief, YCU, Medhost and Medhost Solutions are all

related or affiliated entities.

JURISDICTION AND VENUE
7.

This is an action for trademark infringement and unfair competition in violation of

the trademark laws of the United States, 15 U.S.C. 1114 et. seq., and the common law.
8.

The court has subject matter jurisdiction under 28 U.S.C. 1338 (a) and (b) and

9.

Venue is proper under 28 U.S.C. 1391(b) and (c).

10.

Upon information and belief, the court has personal jurisdiction over Defendants

1367.

because they transact business in the State of Wisconsin, and their actions in this State give rise
to the claims in this lawsuit.
EPICS TRADEMARK RIGHTS
11.

Epic is one of the leading healthcare IT companies in the United States, with

hundreds of healthcare providers, facilities, agencies and organizations using its software
solutions and services.

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12.

Epic markets several software solutions widely used in the healthcare industry,

including an electronic health record (EHR) system, mobile apps to improve patient
engagement between providers and patients, and several solutions to provide safe and secure
access to electronic medical records by providers, referring providers and patients.
13.

One particular feature of Epics EHR software system, is the CARE

EVERYWHERE branded software, which enables healthcare providers to transfer electronic

health records from one provider to another, regardless of whether that provider uses Epics
proprietary software or an EHR system created by another vendor.
14.

The CARE EVERYWHERE software is widely used in the healthcare industry.

For example, in November 2015, more than 20,602,000 medical records were transferred from
one healthcare facility, hospital or provider to another using Epics CARE EVERYWHERE
software.
15.

Epic owns U.S. Trademark Registration No. 2,964,155 for the CARE

EVERYWHERE mark used in connection with software for use in the healthcare field, namely
software for entering, storing, editing, organizing, integrating, synchronizing, processing,
accessing, managing, communicating and sharing data to, from, across and among multiple
separate information systems, including heterogeneous systems, and user manuals and
documentation packaged with such computer software, in International Class 9 (the
Registration). A copy of the Registration is attached as Exhibit A. The Registration was
issued by the United States Patent and Trademark Office (USPTO) over ten years ago, on
June 28, 2005. The CARE EVERYWHERE mark has been in continuous use since that time,
and the Registration is incontestable.

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16.

Epic has used the CARE EVERYWHERE mark in interstate commerce since at

least as early as February 22, 2004. During that time Epic has continuously used its CARE
EVERYWHERE mark in interstate commerce in connection with its proprietary software.
17.

Epic has developed substantial good will in its CARE EVERYWHERE mark, and

the mark has become widely known by the general public as a source identifier relating to Epic.
18.

Because of the long-standing use of the CARE EVERYWHERE mark by Epic

and the substantial investment Epic has made in the mark, the CARE EVERYWHERE mark is a
valuable asset that represents substantial good will.
BACKGROUND
19.

Upon information and belief, Medhost and Medhost Solutions provide software

and related services to healthcare facilities across the nation. Such services include an EHR
software solution.
20.

Defendants and Epic are direct competitors that provide the same or closely

related services in the healthcare IT industry.

21.

YCU was incorporated as a Delaware corporation on or around January 8, 2015.

22.

Upon information and belief, YCU markets a healthcare consumer engagement

platform to healthcare facilities, hospitals and/or providers, which consists of a patient portal,
data analytics and a consumer relationship management tool, all offered as cloud-based software
services or SaaS (the Consumer Engagement Platform). In the industry, SaaS refers to
Software as a Service.
23.

YCUs patient portal enables patients or users to access, view and/or download

certain personal health information, including medical records, and share it with other healthcare
providers.

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24.

Medhost and YCU each promote the Consumer Engagement Platform services in

interstate commerce.
25.

Upon information and belief, Defendants Consumer Engagement Platform

services include the YOURCAREEVERYWHERE software services and related SaaS.

26.

Upon information and belief, Defendants offer a website featuring healthcare

content under the YOURCAREEVERYWHERE mark in interstate commerce.

27.

Upon information and belief, Defendants also use the

YOURCAREEVERYWHERE mark for software services beyond the healthcare content

website, including a means for patients to access their medical records and to create profile pages
for participating healthcare facilities and providers which are co-branded with the
YOURCAREVERYWHERE mark and the facility or providers name and mark.
DEFENDANTS WRONGFUL CONDUCT
28.

On January 16, 2015, YCU filed an intent-to-use application with the USPTO for

registration of the YOURCAREEVERYWHERE mark (the YOURCAREEVERYWHERE

mark) in connection with the following services, in International Class 42:
Providing non-downloadable computer software through a web
based portal for consumers to access medical, healthcare and
health enhancement information and educational resources,
including electronic publications, information on chronic diseases,
health news, articles about health and wellness, medical reference
material, consumer-driven query capability for symptom checkup,
pharmacy information, medical news, and interactive tools for
helping patients manage their health; providing non-downloadable
computer software through a web based portal for health care
providers to access health-related news, trends in healthcare,
custom health and wellness-related information; computer
services, namely, creating an on-line community for healthcare
providers to participate in discussions regarding business
operations in the field of health care, health care-related news, and
wellness
(the Application). The Application was assigned Serial No. 86/505,953.

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29.

From April 12 16, 2015, Defendants attended the annual Health Information and

Management Systems Society Conference and Exhibition, which was held in Chicago, Illinois
(the HIMSS Conference). The HIMSS Conference is the largest health IT conference in the
industry, with over 38,000 people attending the conference in 2014.
30.

At the HIMSS Conference, Defendants presented and exhibited its new Consumer

Engagement Platform, including the YOURCAREVERYWHERE website and related services.

31.

After learning of Defendants intent to use the YOURCAREEVERYWHERE

mark and marketing activities at the HIMSS Conference, Epic contacted the General Counsel of
Medhost in April 2015 and notified Defendants of its prior rights in the CARE EVERYWHERE
mark. Epic demanded Defendants refrain from using the YOURCAREEVERYWHERE mark in
connection with healthcare software and related services.
32.

Defendants refused to comply and continue to use and market its software

services under the YOURCAREEVERYWHERE mark.

33.

YCU then filed an amendment to the Application with the USPTO on May 7,

2015, to delete certain services, with the remaining services listed as follows:
Providing non-downloadable computer software through a web
based portal for consumers to access medical, healthcare and
health enhancement information and educational resources,
including electronic publications, information on chronic diseases,
health news, articles about health and wellness, medical reference
material, consumer-driven query capability for symptom checkup,
pharmacy information, medical news, and interactive tools for
helping patients manage their health.
34.

Upon information and belief, since introducing the YOURCAREEVERYWHERE

services to the market on or around April 2015, approximately 50 facilities or hospitals have
engaged or contracted with one or more of the Defendants to provide a patient portal under the
YOURCAREEVERYWHERE mark and/or create customized profile pages on the
YOURCAREEVERYWHERE website.
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35.

Defendants services offered and performed under the

YOURCAREEVERYWHERE mark are closely related to Epics software sold under the CARE
EVERYWHERE mark.
36.

Defendants use of the YOURCAREEVERYWHERE mark has created a

situation where two parties use a very similar mark for software and related services.
37.

Defendants are not affiliated with, connected with, or endorsed or sponsored by

Epic. Epic has not authorized Defendants to use any mark that incorporates or is confusingly
similar to its CARE EVERYWHERE mark.
38.

Defendants were aware of Epics CARE EVERYWHERE registration and prior

rights in and to the CARE EVERYWHERE mark when Defendants started using the
YOURCAREEVERYWHERE mark.
39.

Defendants willful use of the YOURCAREEVERYHWERE mark is likely to

cause confusion concerning the source, sponsorship or affiliation between Epic and Defendants
and the parties respective goods and services.
40.

Defendants use of the YOURCAREEVERYWHERE mark is without consent,

permission or license from Epic.

41.

Epic is being irreparably harmed by Defendants unauthorized use of the

confusingly similar YOURCAREEVERYWHERE mark, and will continue to suffer irreparable

harm unless and until the Court orders the Defendants to cease their infringement.
42.

Epic has been damaged by Defendants actions in an amount to be proven at trial.

COUNT I LIKELIHOOD OF CONFUSION 15 U.S.C. 1114

43.

Epic restates and realleges each of the allegations set forth in the preceding

paragraphs as if fully set forth herein.

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44.

Epic owns a registration and has common law rights in and to the CARE

EVERYWHERE mark.
45.

The CARE EVERYWHERE mark is a valid and protectable trademark.

46.

Defendants have used the YOURCAREEVERYWHERE mark in interstate

commerce.
47.

The YOURCAREEVERYWHERE mark so resembles Epics CARE

EVERYWHERE mark that use and registration of the YOURCAREEVERYWHERE mark

would be likely to cause confusion, mistake and/or deception as to the source, origin,
sponsorship, affiliation or approval of Defendants goods and services.
48.

Defendants use of the YOURCAREEVERYWHERE mark infringes Epics

trademark rights under the Lanham Act.

49.

Unless and until it is enjoined by this Court, Defendants conduct is causing, and

will continue to cause damage and irreparable harm to Epic, to which there is no adequate
remedy at law.
COUNT II COMMON LAW UNFAIR COMPETITION
50.

Epic restates and realleges each of the allegations set forth in the preceding

paragraphs as if fully set forth herein.

51.

Defendants actions constitute unfair competition.

52.

Epic has been damaged as a result of Defendants unfair competition in an

amount to be determined at trial.

COUNT III STATE TRADEMARK INFRINGEMENT
53.

Epic restates and realleges each of the allegations set forth in the preceding

paragraphs as if fully set forth herein.

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54.

Defendants actions constitute trademark infringement under the statutory and

common laws of the State of Wisconsin.

DAMAGES AND INJUNCTIVE RELIEF
55.

As a result of Defendants actions, Epic has suffered actual and consequential

damages and Defendants have profited from their unlawful actions.

56.

Defendants have intentionally and willfully infringed and acted with reckless

disregard of Epics trademark rights.

57.

Epic seeks recovery of monetary damages, including Defendants profits as a

result of their actions.

58.

Epic seeks enhanced and punitive damages due to Defendants intentional and

willful infringement of Epics trademark and reckless disregard of Epics trademark rights.
59.

To the fullest extent permitted under equity and law, Epic also seeks permanent

injunctive relief enjoining Defendants from continuing their unlawful, unfair and infringing
practices.
JURY DEMAND
60.

Epic hereby demands trial by jury of all claims pursuant to Fed. R. Civ. P. 38.
PRAYER FOR RELIEF

1.

Epic asks that Defendants be required to appear, answer and stand trial, and for

the Court to enter judgment as follows:

A.

An order directing the USPTO to issue a formal refusal of YCUs

trademark application No. 86/505,953 for the CARE EVERYWHERE mark.

B.

An order pursuant 15 U.S.C. 1118 to deliver up for destruction all

containers, labels, signs, prints, packages, wrappers, advertising, promotional materials or the

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like in the possession of Defendants and their customers and licensees bearing any kind of
indicia in volition of 15 U.S. C. 1114 and/or 1125.
C.

Actual and statutory damages as allowed by applicable law.

D.

Costs and attorneys fees as allowed by applicable law.

E.

Exemplary and punitive damages as allowed by applicable law.

F.

Permanent injunctive relief.

G.

Prejudgment and post-judgment interest as allowed by applicable law.

H.

Any other remedy to which Epic may be entitled under law and equity.

Dated: December 22, 2015

Respectfully submitted,
s/Eugenia G. Carter
Eugenia G. Carter
Nicole J. Renouard
Sarah Thomas Pagels
Whyte Hirschboeck Dudek S.C.
33 East Main Street, Suite 300
Madison, WI 53703
Telephone: 608-255-4440
Fax: 608-258-7138
ecarter@whdlaw.com
nrenoaurd@whdlaw.com
sthomaspagels@whdlaw.com
Attorneys for Plaintiff

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