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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SUNOVION PHARMACEUTICALS INC., Plaintiff, v. Civil Action No. ___________ HEALTH SCIENCE NUTRITION, INC. and DOES 1 through 10, Defendants. JURY DEMAND

COMPLAINT Plaintiff Sunovion Pharmaceuticals Inc. (Sunovion or Plaintiff), for its complaint against defendants Health Science Nutrition Inc. (HSN or Defendant) and Does 1 through 10, inclusive (HSN and Does 1 through 10 are collectively Defendants), alleges as follows: JURISDICTION 1. The United States District Court for the District of Massachusetts has subject

matter jurisdiction over this action under 28 U.S.C. 1331 (federal question jurisdiction), 28 U.S.C. 1338(a) (jurisdiction over trademark actions), 28 U.S.C. 1338(b) (unfair competition claim joined with a substantial and related claim under the trademark laws), and 15 U.S.C. 1121(a) including because this action arises under the Lanham Act, 15 U.S.C. 1051, et seq. The Court also has supplemental jurisdiction over the claims arising out of state law pursuant to 28 U.S.C. 1338(b) and 1367 including because the state law claims arise out of the same operative facts as the federal claims. This Court has personal jurisdiction over Defendant(s) including because Defendant(s) sells and offers for sale goods, including goods that are the

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subject of the claims asserted herein, and otherwise transacts business in Massachusetts, including in this judicial district. VENUE 2. Venue in this district is proper pursuant to at least 28 U.S.C. 1391(b) because,

among other reasons, Defendant(s) transacts business within this district, and sells and offers for sale goods in this district in a manner that infringes Sunovions trademark rights and violates provisions of the Lanham Act, as alleged herein. In addition, Sunovion resides in and has suffered harm in this district, and a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this district. PARTIES 3. Sunovion Pharmaceuticals Inc. is a corporation organized and existing under the

laws of the State of Massachusetts, with its principal place of business located in Marlborough, Massachusetts. Sunovion is a leading pharmaceutical company which is dedicated to

discovering, developing, and bringing to market therapeutic products to improve the lives of patients, their families, and communities. Sunovion specializes in pharmaceutical treatments that help people challenged with respiratory and central nervous system ailments, including sleep disorders. Sunovion sells the FDA-approved LUNESTA prescription brand sleep aid

throughout the United States. 4. On information and belief, defendant Health Science Nutrition Inc. is a company

organized and existing under the laws of the State of Utah, and is based in Lindon, Utah. Also on information and belief, HSN owns and/or directly or indirectly operates websites located at

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lunexor.com, health-science-nutrition.com, sleepingpillreviews.com, bestsleepingpills.org, and buytopsleepingpills.org, which sell, offer for sale, and/or advertise infringing products throughout the United States, including in this district. Additionally, Amazon.com states that HSN is the seller of the LUNEXOR-brand non-prescription, non-FDA approved sleeping pill, which infringes Sunovions trademark rights relating to the LUNESTA prescription sleep aid, as described more fully below. 5. Plaintiff is currently unaware of the true names and capacities of the defendants

sued herein as Does 1 through 10, inclusive, and therefore sues those additional defendants by such fictitious names. Plaintiff will amend this Complaint to allege their true names and

capacities when ascertained. 6. Upon information and belief, Plaintiff alleges that each of the fictitiously named

defendants is responsible in some manner for the occurrences herein alleged and that Plaintiffs damages as herein alleged were proximately caused by their conduct. Plaintiff further alleges that each of the fictitiously named defendants is the alter ego and/or agent of HSN and/or otherwise should be held responsible for the activities of HSN due to their control over and/or interactions with HSN. FACTS COMMON TO ALL CLAIMS SUNOVIONS LUNESTA PRESCRIPTION SLEEP AID 7. As early as April 2005, Sunovion introduced and began sales and marketing of a

prescription sleep aid under the trademark LUNESTA in the United States, including in this district. A true and correct copy of a picture of the LUNESTA word mark and the moth design mark used in connection with the LUNESTA prescription sleep aid is shown immediately below and attached hereto as Exhibit A. 3
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8.

Today, Sunovions LUNESTA prescription sleep aid is the most-often-

prescribed branded sleep aid, and over 31 million prescriptions have been written for the LUNESTA prescription sleep aid to help patients treat their insomnia. 9. Sunovions LUNESTA prescription sleep aid is sold and offered for sale in

conjunction with the LUNESTA word mark. In addition, the LUNESTA prescription sleep aid is sold and offered for sale in conjunction with the distinctive moth design shown immediately below.

10.

Sunovions LUNESTA prescription sleep aid is a widely-recognized brand and

has been, and continues to be, a commercial success. Sunovion has expended considerable time, effort, and money promoting and advertising its LUNESTA prescription sleep aid in both print and television advertisements. A true and correct copy of one of the paid advertisements for the LUNESTA prescription sleep aid is attached hereto as Exhibit B. 11. Sunovion has also used the LUNESTA trademarks extensively on the internet.

As a result, Sunovions LUNESTA trademarks have developed a strong internet presence and recognition by consumers who use the internet. For instance, Sunovion owns the following domain names, all of which incorporate the LUNESTA word mark: lunesta.com, lunesta.biz, lunesta.ca, lunesta.cc, lunesta.info, lunesta.net, lunesta.org, lunesta.us, lunesta.mobi, lunesta.can, lunesta.eu, and lunesta.de. 4
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12.

Sunovion owns and operates the official website for the LUNESTA prescription

sleep aid at lunesta.com in order to promote and provide consumers with information concerning Sunovions LUNESTA prescription sleep aid. Sunovions website makes extensive use of the LUNESTA word mark and the LUNESTA moth design mark. The LUNESTA word mark and the LUNESTA moth design mark are integrated into and featured on the majority of the pages of the official website for the LUNESTA prescription sleep aid. 13. Given Sunovions extensive use, marketing, branding, and promotion of its sleep

aid under the LUNESTA word mark and the LUNESTA moth design mark, including throughout the United States, the LUNESTA prescription sleep aid and the Sunovion trademarks used in conjunction therewith are recognized by consumers throughout the United States and the world. The public distinguishes Sunovions goods from those of others who offer the same or similar sleep aids on the basis of its LUNESTA trademarks. In addition to Sunovions trademark registrations for the LUNESTA trademarks, described below, Sunovion has also established common law rights in the United States in its LUNESTA trademarks through widespread use and promotion of those marks, including use of the LUNESTA word mark since at least as early as April 2005. SUNOVIONS FEDERAL REGISTRATIONS FOR ITS LUNESTA TRADEMARKS 14. In addition to its common law rights, Sunovion also is the owner of several

federal registrations for its LUNESTA trademarks in the United States. True and correct copies reflecting Sunovions United States federal trademark registrations for the LUNESTA trademarks are attached hereto as Exhibit C. Sunovions federal registrations for its

LUNESTA trademarks in the United States include at least the following:

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Mark

Country

Registration Date

Number

and

United States

Registration No. 3745483 Registered in Feb. 2010

United States

Registration No. 3839400 Registered in Aug. 2010

United States

Registration No. 3187447 Registered in Dec. 2006

LUNESTA

United States

Registration No. 3133744 Registered in Aug. 2006

15.

Sunovions federal registrations for its LUNESTA trademarks constitute prima

facie evidence that the marks are valid and that Sunovion is entitled to exclusive use of the LUNESTA word mark and the LUNESTA moth design mark in commerce throughout the United States in connection with the goods related thereto. DEFENDANTS INFRINGEMENT OF SUNOVIONS LUNESTA TRADEMARKS 16. Upon information and belief, Defendant is the seller of a non-prescription, non-

FDA approved sleeping pill with a name and logo that are strikingly similar to Sunovions LUNESTA trademarks: the LUNEXOR product. In addition, on information and belief,

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Defendant and/or entities or individuals associated with Defendant have advertised the LUNEXOR products by bidding on the LUNESTA word mark as a key word on multiple search engines. As a result, when consumers searched for the LUNESTA prescription sleep aid on these search engines, advertisements for sleeping pill review sites that on information and belief are operated by Defendant and/or persons or entities associated therewith appeared as a sponsored link. These websites in turn direct consumers to purchase the LUNEXOR product instead of the LUNESTA prescription sleep aid. This scheme appears to be part of a pattern and practice of one or more persons and/or entities who on information and belief are associated with HSN, who have been accused multiple times of improperly bidding on competitors trademarks as keywords and using sponsored links generated by those keywords to re-direct consumers looking for a branded product to seemingly neutral review sites that are actually maintained by the person(s) and/or entities and which promote their competing products. 17. Upon information and belief, Defendant Health Science Nutrition Inc. is the seller

of the LUNEXOR-brand non-prescription product, which is sold and offered for sale under the name LUNEXOR and with a moth-like design used in conjunction therewith:

18.

The LUNEXOR name is confusingly similar to Sunovions LUNESTA word

mark. For example, and without limitation, the first four letters of the name LUNEXOR are 7
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precisely the same as the first four letters of the LUNESTA word mark. Further, and again without limitation, like the moth design featured in the top right corner of the LUNESTA trademark that combines the LUNESTA word mark and the LUNESTA moth design mark, the LUNEXOR product features a moth-like design located above the top right portion of the LUNEXOR name: ONE OF SUNOVIONS REGISTERED MARKS DEFENDANTS LUNEXOR PRODUCT

Additionally, and again without limitation, Defendant incorporates a font that is nearly or precisely identical to that used in the LUNESTA word mark. A true and correct copy of an example of Defendants infringing use of Sunovions LUNESTA trademarks is attached hereto as Exhibit D. 19. On information and belief, Defendant operates a website at health-science-

nutrition.com. That website does not contain active links and provides virtually no information about the company or its management and personnel. Further, the health-science-nutrition.com domain name was registered anonymously. Upon information and belief, people and/or entities

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associated with Defendant own and/or operate the website at health-science-nutrition.com and attempt to mask Defendants believed relationship to that website. 20. The website located at lunexor.com promotes the LUNEXOR product, yet

provides virtually no information about the manufacturer of LUNEXOR. The only contact information provided is an email address, sales@lunexor.com, and a toll-free telephone number, (888) 930-4685. Consumers across the United States, including in Massachusetts, may purchase the infringing LUNEXOR product on this website via Google Checkout, PayPal, or a Secure Order Form. Upon information and belief, people and/or entities associated with Defendant own and/or operate the website at lunexor.com and attempt to mask Defendants believed relationship to that website. 21. Additionally, Defendant offers the LUNEXOR product for sale on Amazon.com.

A true and accurate screenshot of Defendants advertised role as the seller of the LUNEXOR product on Amazon.com is shown immediately below and attached hereto as Exhibit E.

22.

Upon information and belief, Defendant has also advertised the LUNEXOR

product through several search engines including, without limitation, Bing and Yahoo!, including 9
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by bidding on Sunovions LUNESTA word mark as a keyword. By doing so, an advertisement for the website at Sleepingpillreviews.com has appeared as a sponsored link when a computer user entered the LUNESTA word mark into the search engines at bing.com and yahoo.com, including as shown immediately below.

23.

Sunovion is informed and believes and based thereon alleges that Defendants

intent in bidding on Sunovions LUNESTA word mark as a key word was to use this sponsored link to divert consumers specifically searching for the LUNESTA products to purchase Defendants sleeping pill product, the LUNEXOR product, instead. 24. The website at Sleepingpillreviews.com promotes sales of the LUNEXOR

products by featuring three sleep aids as the Editors Choice products: the LUNEXOR, AmbeSleep, and RestAid sleep aids. The websites About Us section provides no information regarding the editors or the website owner, and the only contact information is a general email address, admin@sleepingpillreviews.com. The domain name Sleepingpillreviews.com was

registered anonymously. Upon information and belief, people and/or entities associated with Defendant own and/or operate the website at Sleepingpillreviews.com and attempt to mask Defendants believed relationship to that website.

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25.

Sunovion is informed and believes that Defendant and/or people and/or entities

associated with Defendant own and control additional product review websites like those at Sleepingpillreviews.com to promote the sale of the LUNEXOR product. Reviews on

Sleepingpillreviews.com direct consumers to buy the LUNEXOR product instead of the LUNESTA product. 26. Upon information and belief, Defendant and/or people and entities associated

with Defendant are involved in the activities of a second website, at Bestsleepingpills.org, which like the Sleepingpillreviews.com website directs consumers to purchase the same three sleeping pills: the LUNEXOR, AmbeSleep, and RestAid products. The websites About Us section provides no information regarding its editors or the website owner, and there is no contact information whatsoever despite a Contact Us link. The review of the LUNESTA product directs consumers to review the Bestsleepingpills.org recommendations, which again feature the LUNEXOR product and claim that the LUNEXOR product is the only product ever reviewed on the site that visitors have said works better than many prescription sleep medications. 27. Upon information and belief, Defendant and/or people and entities associated

with Defendant are involved in the activities of a third website, at Buytopsleepingpills.com, which rates the LUNEXOR product and an AmbeSleep product as the top two sleep aids. The website contains no information regarding the editors or website owner and the only way to contact Buytopsleepingpills.com is by filling out a generic form or calling a toll-free telephone number, (800) 915-9412. Further, the website lists the top five sleeping pills as the AmbeSleep, LUNEXOR, Somnaslim, Somabien, and Orovo ZMA products, and solely provides reviews for those products. The domain name Buytopsleepingpills.com was registered anonymously. Upon information and belief, people and/or entities associated with Defendant own and/or operate the 11
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website at Buytopsleepingpills.com and attempt to mask Defendants believed relationship to that website. 28. Pages included in these websites direct consumers to look at

BestSleepingPills.org recommendations for natural sleep supplements and try those first. Again, Defendants LUNEXOR sleep aid is listed as a top recommendation. Similarly,

Defendants Sleepingpillreviews.com lists the LUNEXOR product as a top recommendation. True and accurate screenshots of LUNESTA prescription sleep aid reviews on Bestsleepingpills.org and Sleepingpillreviews.com are attached hereto as Exhibit F. 29. Sunovion is informed and believes, and based thereon alleges, that at the time

Defendant introduced its product under the name LUNEXOR using a moth-like design in connection with that name, Defendant knew of Sunovions superior rights in the LUNESTA trademarks and knew or should have known that Defendants unauthorized use of Sunovions LUNESTA trademarks constitutes a violation of Sunovions trademark rights. Defendants infringement of Sunovions trademark rights is therefore intentional and willful. 30. Defendants use of a name and design that is confusingly similar to the

LUNESTA trademarks is likely to cause confusion, mistake, and deception of consumers as to the source, quality, and nature of Defendants product sold under the name LUNEXOR, thereby proximately causing injury to Sunovion and its trademark rights. FIRST CLAIM FOR RELIEF (Infringement of Federally Registered Trademarks) 15 U.S.C. 1114(1) 31. Sunovion realleges and incorporates by reference the allegations in paragraphs 1

through 30, as if set forth fully herein. 12

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32.

This claim is against Defendants for trademark infringement in violation of

Section 32(1) of the Lanham Act, 15 U.S.C. 1114(1). 33. Defendants have used and are using in interstate commerce Sunovions valid and

federally registered LUNESTA trademarks in connection with the sale of the LUNEXOR product in such a way as is likely to cause confusion, to cause mistake, and/or to deceive the consuming public. 34. Sunovion never consented to or authorized Defendants adoption or commercial

use of the LUNESTA trademarks for any purpose. Defendants therefore have infringed and are infringing Sunovions LUNESTA trademark registrations including as described above in violation of Section 32(1)(a) of the Lanham Act, 15 U.S.C. 1114(1)(a). 35. Upon information and belief, Sunovion alleges that, at all times relevant to this

action, including when Defendants first introduced LUNEXOR and commenced its commercial use, Defendants knew of Sunovions prior adoption and widespread commercial use of the LUNESTA trademarks and knew of the valuable goodwill and reputation acquired by Sunovion in connection with the LUNESTA trademarks. Defendants infringement of

Sunovions LUNESTA trademarks is therefore willful and deliberate. 36. Sunovion has no control over the quality of Defendants infringing goods, and

because of the source confusion engendered by Defendants trademark infringement, Sunovions valuable goodwill in and to its federally registered LUNESTA trademarks including as described above is being significantly harmed. Defendants use of the name LUNEXOR and the moth-like design used in association therewith, in imitation of Sunovions LUNESTA

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trademarks, is likely to cause confusion, mistake, and deception to purchasers as to the source and origin of Defendants product. 37. Defendants activities have caused and will continue to cause irreparable harm to

Sunovion for which Sunovion has no adequate remedy at law. Sunovion is entitled to recover Defendants profits, together with Sunovions damages, increased monetary recoveries as provided by the Lanham Act, as well as costs of the action and reasonable attorneys fees pursuant to Section 35(a) of the Lanham Act, 15 U.S.C. 1114(a). 38. Sunovion is also entitled to, in addition to the other remedies described herein, the

cost of corrective advertising and a reasonable royalty as a result of Defendants infringement of Sunovions federally registered LUNESTA trademarks. SECOND CLAIM FOR RELIEF (Trademark Infringement and Unfair Competition) 15 U.S.C. 1125(a)(1)(A) 39. Sunovion realleges and incorporates by reference the allegations in paragraphs 1

through 38, as if set forth fully herein. 40. This claim is against Defendants for trademark infringement and unfair

competition, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(1)(A). 41. Sunovions LUNESTA trademarks, including, but not limited to, its

LUNESTA word mark and moth design mark, are inherently distinctive and have acquired secondary meaning in the eyes of consumers and the public. 42. Defendants use and imitation of the LUNESTA trademarks in its design and

promotion of the LUNEXOR product is so similar to Sunovions LUNESTA trademarks that it 14

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is likely to cause confusion, mistake, and/or to deceive the consuming public as to the affiliation, connection, and/or association between Defendants LUNEXOR product and Sunovions LUNESTA trademarks. Defendants actions are also likely to cause confusion as to the source or origin of the LUNEXOR product, and mislead consumers into believing that the LUNEXOR product is marketed, sold, and/or sponsored by Sunovion. Defendants unauthorized use of the LUNESTA trademarks infringes Sunovions trademarks and constitutes unfair competition. 43. On information and belief, at all times relevant to this action, Defendants knew of

Sunovions prior adoption and widespread commercial use of the LUNESTA trademarks, and knew of the valuable goodwill and reputation acquired by Sunovion in connection with its LUNESTA trademarks. Defendants infringement is thus knowing, willful, and deliberate. 44. Defendants activities are likely to lead the public to incorrectly conclude that

Defendants LUNEXOR product originates with, is sponsored by, and/or is authorized by Sunovion, to the damage and harm of Sunovion and the consuming public. Defendants

activities constitute willful and deliberate infringement of Sunovions LUNESTA trademarks in violation of the Lanham Act, including, but not limited to, 15 U.S.C. 1125(a)(1)(A); accordingly, Sunovion is entitled to recover Defendants profits together with Sunovions damages, an increased monetary recovery, as well as costs of the action and reasonable attorneys fees pursuant to Section 35(a) of the Lanham Act, 15 U.S.C. 1117(a). 45. Sunovion is also entitled to, in addition to the other remedies described herein, the

cost of corrective advertising and a reasonable royalty as a result of Defendants infringement of Sunovions LUNESTA trademarks.

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THIRD CLAIM FOR RELIEF (Trademark Dilution) 15 U.S.C. 1125(c) 46. Sunovion realleges and incorporates by reference the allegations in paragraphs 1

through 45, as if set forth fully herein. 47. This claim is against Defendants for trademark dilution, in violation of Section

43(c) of the Lanham Act, 15 U.S.C. 1125(c). 48. Sunovions LUNESTA trademarks, including, but not limited to, its

LUNESTA word mark and moth design mark, are inherently distinctive and famous within the meaning of 15 U.S.C. 1125(c)(2)(A). The LUNESTA trademarks have been widely used and advertised throughout the United States, and are widely recognized by consumers as connected with the source of prescription sleep aids from Sunovion. 49. Defendants unauthorized use of the LUNEXOR mark and design, which are

confusingly similar to the LUNESTA trademarks, in interstate commerce, also constitutes trademark dilution. Defendants unlawfully used the LUNEXOR name and design in connection with the sale of the LUNEXOR product after the LUNESTA trademarks had became famous and widely known. Defendants actions create dilution by blurring including by creating a nonexistent association between LUNEXOR and the LUNESTA trademarks, and also including by weakening the distinctiveness of Sunovions LUNESTA trademarks. Defendants acts also create dilution by tarnishment, including by harming the reputation of Sunovions trademarks. 50. On information and belief, Defendants committed these actions willfully, with the

intent to trade on the publics recognition of Sunovions famous marks, harm the reputation of the LUNESTA trademarks, and cause dilution of Sunovions trademarks. Defendants actions 16
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have caused Sunovion irreparable injury, loss of reputation and goodwill, and pecuniary damages. Accordingly, Sunovion is entitled to injunctive relief, damages, defendants profits, fees, costs and destruction of the infringing articles pursuant to 15 U.S.C. 1117(a), 1118, and 1125(c). FOURTH CLAIM FOR RELIEF (Unfair Competition under State Law) Massachusetts General Laws ch. 93A 51. Sunovion realleges and incorporates by reference the allegations in paragraphs 1

through 50, as if set forth fully herein. 52. This claim is against Defendants for unfair competition, in violation of

Massachusetts General Laws Chapter 93A. 53. Defendants and Sunovion are persons engaged in the conduct of trade or

commerce within the meaning of Massachusetts General Laws Chapter 93A. 54. Defendants acts as detailed herein, including without limitation the confusingly

similar use and imitation of the LUNESTA trademarks, have impaired Sunovions goodwill, created a likelihood of confusion, and are likely to mislead consumers. Such deceptive acts or practices in the conduct of trade and commerce occurring substantially within the Commonwealth of Massachusetts constitute unfair competition under Massachusetts General Laws Chapter 93A. 55. Sunovion is entitled to injunctive relief prohibiting Defendants from continuing

such acts of unfair competition, given that Sunovion has no means by which to control

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Defendants deceptive and confusing use of Sunovions LUNESTA trademarks absent such relief. 56. As a direct and proximate result of the aforementioned acts of unfair competition,

Defendants have wrongfully profited from Sunovions LUNESTA trademarks and Sunovion has been damaged and will continue to be damaged. FIFTH CLAIM FOR RELIEF (Trademark Infringement Under State Law) Massachusetts Common Law 57. Sunovion realleges and incorporates by reference the allegations in paragraphs 1

through 56, as if set forth fully herein. 58. Defendants acts infringe Sunovions LUNESTA trademarks as described above

and have caused and are likely to continue to cause consumer confusion and also injury to Sunovions business and reputation. Defendants acts have been and are the proximate cause of injury to Sunovion. 59. Absent injunctive relief, Sunovion has no means to stop Defendants continued Sunovion is therefore entitled to

infringement of Sunovions LUNESTA trademarks.

injunctive relief prohibiting Defendants from continuing the unlawful acts described herein. Sunovion is also entitled to damages, Defendants profits, punitive damages, an accounting, costs, attorneys fees and other damages and monetary relief, all according to proof at trial.

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SIXTH CLAIM FOR RELIEF (Trademark Dilution Under State Law) Massachusetts General Laws ch. 110H, 13 60. Sunovion realleges and incorporates by reference the allegations in paragraphs 1

through 59, as if set forth fully herein. 61. This claim is against Defendants for trademark dilution, in violation of

Massachusetts General Laws chapter 110H, 13. 62. Defendants have engaged in the unauthorized use of Sunovions trademarks,

which are strong and distinctive, in connection with the sale and promotion of the LUNEXOR product by using a mark and design that are confusingly similar to the LUNESTA trademarks. As a result, Defendants have harmed the reputation associated with the LUNESTA trademarks, reduced the value of the LUNESTA trademarks including due to consumer confusion, and diluted the distinctive quality of the trademarks. 63. On information and belief, Defendants actions are the result of a willful intent to

trade on Sunovions reputation and the fame and popularity of the LUNESTA trademarks, and cause dilution of the famous marks. As a result of Defendants conduct, Sunovion has been irreparably damaged, and will continue to be harmed unless and until Defendants are enjoined from their unauthorized use of the LUNESTA trademarks. PRAYER FOR RELIEF Wherefore, Sunovion prays for entry of a judgment ordering and declaring: 1. That, preliminarily pending trial of this action and permanently thereafter,

Defendants and their agents, servants, employees, successors, licensees and assignees, and all persons, firms, entities, partners, or corporations in active concert or participation with 19
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Defendants, are preliminarily and thereafter permanently enjoined from doing, threatening, or attempting to do or causing to be done, either directly or indirectly, by any means, method or device, any of the following acts: (a) Directly or indirectly infringing, using, or displaying Sunovions

LUNESTA trademarks, in any manner or for any purpose, including, but not limited to, in advertising, promoting, producing, distributing, selling, offering for sale, or giving away any services or products which infringe, use, or display Sunovions LUNESTA trademarks or any marks or trade dress similar thereto; (b) Using any term that is likely to be confused with Sunovions LUNESTA

trademarks, including without limitation the name LUNEXOR; (c) Falsely representing, misleading, or deceiving consumers into believing

that products advertised, promoted, produced, distributed, sold, or offered for sale by Defendants originate from Sunovion or its LUNESTA prescription sleep aid, or are sponsored, approved, licensed by, or associated with Sunovion, or that Defendants and their products are in some way associated or affiliated with Sunovion or its LUNESTA trademarks; (d) Destroying, concealing, altering, or otherwise disposing of any documents,

electronically stored information, or other evidence that relates or refers to the advertising, promotion, production, distribution, sale, or giving away of Defendants products and services which infringe Sunovions LUNESTA trademarks, including, but not limited to, sales journals, supplier journals, customer journals, ledgers, invoices,

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purchase orders, inventory control documents, bank records, correspondence, and e-mail messages concerning the LUNEXOR products and any other infringing products; (e) Committing any other acts calculated to or that do unfairly compete with

Sunovion in any manner; (f) Filing or prosecuting any trademark application for the LUNESTA

trademarks or any mark confusingly similar thereto; (g) Filing or maintaining any business license, d/b/a, or similar document

using the LUNESTA trademarks or any mark confusingly similar thereto; (h) Registering or using any trade name or domain name containing or

consisting of the LUNESTA trademarks or any mark confusingly similar thereto; 2. That Defendants be required to account for all profits derived by them from their

trade, infringing conduct, unfair practices and competition, and for an order of restitution of the entire amount of those profits, in amounts to be proven at trial, to Sunovion; 3. That Defendants be required to turn over to be impounded during the pendency of

this action all goods and other materials in their possession, custody, or control used or involved in the trademark infringement complained of herein, and to turn over for destruction all such goods and other materials, or in the alternative that all such items be subject to seizure; 4. That Defendants be ordered to pay all of Sunovions attorneys fees, costs, and

disbursements incurred in this suit, in bringing this action for the legal enforcement of its

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trademark rights, and in connection with all efforts to stop Defendants trademark infringement, trademark dilution, unfair competition, and other unlawful acts as alleged herein; 5. That, in addition to being ordered to pay its profits attributable to the infringing

conduct complained of herein to Sunovion, Defendants also be ordered to pay their infringing profits as monetary damages and reasonable royalties, to be increased by the Court by such amount as the Court deems to be just, together with Sunovions damages, all of which, according to the circumstances of this case, should be increased and trebled as provided by law, including pursuant to 15 U.S.C. 1117, and paid to Sunovion; 6. That Defendants be ordered to pay exemplary or punitive damages to the extent

available under, and according to, law, including Chapter 93A; 7. That Defendants have willfully and deliberately committed acts of trademark

infringement and unfair competition against Sunovion; 8. 9. That Defendants be ordered to pay interest according to law; and All such other, further, and different relief that this Court deems just and proper. JURY DEMAND Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff Sunovion demands a jury trial on all issues so triable.

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Case 1:11-cv-11564 Document 1

Filed 09/06/11 Page 23 of 23

Respectfully submitted, SUNOVION PHARMACEUTICALS INC. By its attorneys, DATED: September 6, 2011 /s/ John L. Strand___________ John L. Strand (BBO #654985) jstrand@wolfgreenfield.com WOLF, GREENFIELD & SACKS, P.C. 600 Atlantic Avenue Boston, MA 02210 Tel: 617.646.8000 Facsimile: 617.646.8646 Michael DeVries (pro hac vice filed herewith) michael.devries@kirkland.com KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, California 90071 Tel: 213.680.8590 Facsimile: 213.808.8032

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