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UNITED STATES DISTRICT COURT for the DISTRICT OF MASSACHUSETTS SKINCARE PHYSICIANS, INC., Plaintiff, v. ARIZONA SKINCARE PHYSICIANS, PLC, Defendant. ) ) ) ) ) ) ) ) )

Civil No.

COMPLAINT AND JURY DEMAND Plaintiff SkinCare Physicians, Inc., for its complaint against defendant Arizona SkinCare Physicians, PLC, alleges as follows: 1. This is an action against Arizona SkinCare Physicians, PLC for, among other

claims, infringement of plaintiffs registered trademark SKINCARE PHYSICIANS. Parties 2. Plaintiff SkinCare Physicians, Inc. is a corporation duly organized and existing

under the laws of the Commonwealth of Massachusetts, with a place of business at 1244 Boylston Street, Chestnut Hill, Massachusetts 02467. 3. On information and belief, defendant Arizona SkinCare Physicians, PLC is a

public liability company organized and existing under the laws of the State of Arizona, with a place of business at 10565 N. Tatum Boulevard, Suite B-116, Paradise Valley, Arizona 85253. Jurisdiction and Venue 4. This is an action for trademark infringement arising under the Lanham Act, 15

U.S.C. 1051 et seq. and related claims for false designation of origin under 15 U.S.C. 1125(a), and for unfair competition, for which the Court has jurisdiction under 28 U.S.C.
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1331, 1338(a) and 1338(b), and this Courts pendent jurisdiction. In addition, this is a civil action between citizens of different states where the matter in controversy is believed to exceed the sum or value of $1,000,000 exclusive of interest and costs, for which this Court has jurisdiction under 28 U.S.C. 1332(a)(1). 5. Venue in this Court exists under 28 U.S.C. 1391(b) and 1391(c). Facts Giving Rise to Claim 6. Plaintiff SkinCare Physicians, Inc. is in the business of providing dermatologic,

laser, cosmetic and aesthetic skin care services to clients and patients from throughout the country who are seeking medical, cosmetic or aesthetic skin care and treatment. 7. Since February 2000, plaintiff has used SkinCare Physicians, Inc. as a corporate

name to identify the company in commerce. 8. Since at least as early as February 2000, plaintiff has used the mark SKINCARE

PHYSICIANS and marks that include the term SKINCARE PHYSICIANS continuously in commerce as a brand name for its services. 9. On March 1, 2000, plaintiff registered SKINCAREPHYSICIANS.NET as its

websites domain name. 10. On January 24, 2005, SkinCare Physicians, Inc. applied to register SKINCARE

PHYSICIANS and design with the United States Patent and Trademark Office (USPTO) for dermatologic, laser, cosmetic and aesthetic skin care services, in International Class 44. This application was assigned serial number 76/629,015. 11. A registration of SKINCARE PHYSICIANS and design on the Principal Register

issued on October 10, 2006, with Registration No. 3,152,547. A true and correct copy of the registration is attached hereto as Exhibit A, and is made a part hereof.

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12.

Defendant Arizona SkinCare Physicians, PLC advertises and offers its services to

perform dermatologic, laser, cosmetic and aesthetic skin care services that are the same as services provided by plaintiff SkinCare Physicians, Inc. 13. Defendant Arizona SkinCare Physicians, PLC is improperly using the phrase

SKINCARE PHYSICIANS in commerce as a mark for its services without plaintiffs permission and over plaintiffs objection. 14. Defendant Arizona SkinCare Physicians, PLC advertises and promotes its

services nationwide under a mark that includes prominent use of SKINCARE PHYSICIANS to clients seeking dermatologic, laser, cosmetic and aesthetic skin care and treatment. Such advertising and promotion by defendant that makes prominent use of SKINCARE PHYSICIANS includes advertising and promotion on its website and on Facebook that is directed to potential clients nationwide, including in the Commonwealth of Massachusetts. Defendants website and Facebook page are interactive, providing potential clients, including potential clients in the Commonwealth of Massachusetts the ability to make appointments online through links on the website and the Facebook page, and to download forms for submission to defendant in connection with their receiving defendants services. 15. Plaintiff SkinCare Physicians, Inc. gave direct notice to defendant Arizona

SkinCare Physicians, PLC of plaintiffs rights in the mark SKINCARE PHYSICIANS. Defendant Arizona SkinCare Physicians, PLC responded to the notice from plaintiff SkinCare Physicians, Inc. by asserting that defendant Arizona SkinCare Physicians, PLCs use of the phrase SKINCARE PHYSICIANS does not infringe plaintiff SkinCare Physicians, Inc.s registered mark SKINCARE PHYSICIANS. 16. Notwithstanding notice by SkinCare Physicians, Inc. of its rights in the mark

SKINCARE PHYSICIANS, defendant Arizona SkinCare Physicians, PLC has continued to use a
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trade name containing prominent use of the phrase SKINCARE PHYSICIANS, and has continued to use a mark containing prominent use of the phrase SKINCARE PHYSICIANS in its advertising of its services to potential clients nationwide seeking dermatologic, cosmetic, and aesthetic skin care and treatment, including on its interactive website and Facebook page. 17. Defendant Arizona SkinCare Physicians, PLCs use of a trade name and mark that

includes SKINCARE PHYSICIANS in connection with its services infringes the rights of plaintiff SkinCare Physicians, Inc. and is likely to cause confusion, to cause mistake, and to deceive as to the origin, sponsorship, affiliation with or approval by plaintiff of the services of the defendant. 18. Plaintiff SkinCare Physicians, Inc. has been and continues to be irreparably

damaged by defendant Arizona SkinCare Physicians, PLCs use of the mark SKINCARE PHYSICIANS. COUNT ONE Trademark Infringement Under the Lanham Act 19. Plaintiff realleges and incorporates herein by reference each of the allegations

contained in paragraphs 1 through 18 of this Complaint. 20. Defendant Arizona SkinCare Physicians, PLCs actions were and continue to be

in violation of section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), which imposes liability on a person for use in commerce of any word, term, name, symbol or device, or any combination thereof, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of a person with another person or as to the origin, sponsorship, or approval of its goods, services, or commercial activities by another person. 21. Defendant Arizona SkinCare Physicians, PLCs use and continuing use of

plaintiffs registered mark SKINCARE PHYSICIANS in violation of plaintiffs rights, after

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receiving notice of plaintiffs rights, constitutes willful infringement of plaintiffs SKINCARE PHYSICIANS mark. 22. Plaintiff SkinCare Physicians, Inc. is being damaged by defendant Arizona

SkinCare Physicians, PLCs use of the mark SKINCARE PHYSICIANS in violation of 15 U.S.C. 1125(a). COUNT TWO False Designation of Origin Under the Lanham Act 23. Plaintiff realleges and incorporates herein by reference each of the allegations

contained in paragraphs 1 through 22 of this Complaint. 24. Defendants actions were and are in violation of section 43(a) of the Lanham Act,

15 U.S.C. 1125(a), which imposes liability on a person for false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of a person with another person or as to the origin, sponsorship, or approval of its goods, services, or commercial activities by another person, or in commercial advertising and promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or her or another persons goods, services, or commercial activities. 25. Defendant Arizona SkinCare Physicians, PLCs use and continuing use of

SKINCARE PHYSICIANS in violation of plaintiffs rights, after receiving notice of plaintiffs rights, is willful. 26. Plaintiff SkinCare Physicians, Inc. is being damaged by defendant Arizona

SkinCare Physicians, PLCs use of SKINCARE PHYSICIANS in violation of 15 U.S.C. 1125(a).

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COUNT THREE Common Law Trademark Infringement 27. Plaintiff realleges and incorporates herein by reference each of the allegations

contained in paragraphs 1 through 26 of this Complaint. 28. Defendant Arizona SkinCare Physicians, PLC has infringed and continues to

infringe plaintiff SkinCare Physicians, Inc.s common law rights in the mark and trade name SKINCARE PHYSICIANS. 29. Defendant Arizona SkinCare Physicians, PLCs use and continuing use of

plaintiffs common law mark and trade name SKINCARE PHYSICIANS, after receiving notice of plaintiffs rights, constitutes willful infringement of plaintiffs rights. 30. Plaintiff SkinCare Physicians, Inc. is being damaged by defendant Arizona

SkinCare Physicians, PLCs use of the common law mark and trade name SKINCARE PHYSICIANS. COUNT FOUR Unfair Competition 31. Plaintiff realleges and incorporates herein by reference each of the allegations

contained in paragraphs 1 through 30 of this Complaint. 32. Defendant Arizona SkinCare Physicians, PLC, by its foregoing actions, has

engaged and is continuing to engage in unfair competition with plaintiff SkinCare Physicians, Inc. 33. Defendant Arizona SkinCare Physicians, PLCs unfair competition, after

receiving notice of plaintiffs rights, is willful. 34. Plaintiff SkinCare Physicians, Inc. is being damaged by defendant Arizona

SkinCare Physicians, PLCs unfair competition.

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WHEREFORE, SkinCare Physicians, Inc. respectfully prays that this Court enter judgment against defendant Arizona SkinCare Physicians, PLC: A. trial; B. Pursuant to the powers granted under 15 U.S.C. 1116, enjoining defendant Awarding plaintiff SkinCare Physicians, Inc. such damages as may be proved at

Arizona SkinCare Physicians, PLC and its officers, agents, servants, employees and attorneys, and those acting in active concert or participation with it, from directly or indirectly using the term SKINCARE PHYSICIANS or any other mark, word, phrase or name that is similar to plaintiffs mark SKINCARE PHYSICIANS and that is likely to cause confusion or mistake or to deceive; C. Pursuant to the powers granted under 15 U.S.C. 1118, ordering that all

promotional materials, advertisements, handouts, brochures, and the like in the possession of defendant that includes SKINCARE PHYSICIANS or any mark, word, or name similar to plaintiffs mark SKINCARE PHYSICIANS shall be delivered and destroyed; and enjoining defendant to remove from its website and its page on Facebook all use of the phrase SKINCARE PHYSICIANS and any mark, word, or name similar to plaintiffs mark SKINCARE PHYSICIANS; D. Requiring defendant Arizona SkinCare Physicians, PLC to account to plaintiff

SkinCare Physicians, Inc. for any and all profits derived by defendant from its dermatologic, laser, cosmetic and aesthetic skin care and treatment services under the mark or trade name SKINCARE PHYSICIANS; E. Pursuant to 15 U.S.C. 1117, awarding plaintiff SkinCare Physicians, Inc. the

profits of defendant Arizona SkinCare Physicians, PLC;

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F.

Pursuant to 15 U.S.C. 1117, awarding plaintiff treble the amount of damages

caused by defendant, or awarding plaintiff punitive and exemplary damages by reason of defendants wrongful, willful acts; G. Pursuant to 15 U.S.C. 1117, determining that this is exceptional case and

awarding plaintiff reasonable attorneys fees; H. I. Pursuant to 15 U.S.C. 1117, awarding plaintiff the costs of this action; Awarding plaintiff pre-judgment and post-judgment interest, compounded under

federal common law; and J. Granting plaintiff such other and further relief as may be just and proper.

Jury Demand Plaintiff SkinCare Physicians, Inc. hereby demands a trial by jury on all claims and issues that are triable by jury.

SKINCARE PHYSICIANS, INC., By its attorneys, /s/ David J. Brody Susan G. L. Glovsky (BBO #195880 E-Mail: susan.glovsky@hbsr.com David J. Brody (BBO #058200) E-Mail: david.brody@hbsr.com Hamilton, Brook, Smith & Reynolds, P.C. 530 Virginia Road P.O. Box 9133 Concord, Massachusetts 01742 Tel.: (978) 341-0036 Fax: (978) 341-0136

Dated: July 21, 2011

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