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Complaint Bayer Cipla

Complaint Bayer Cipla

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Published by mschwimmer
trademark complaint bayer cipla
trademark complaint bayer cipla

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Published by: mschwimmer on Sep 14, 2011
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11/28/2012

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David H. Bernstein (dhbernstein@debevoise.com)Michael Schaper (mschaper@debevoise.com)Christopher J. Hamilton (cjhamilton@debevoise.com)Benjamin Sirota (bsirota@debevoise.com)DEBEVOISE & PLIMPTON LLP919 Third Avenue New York, New York 10022(212) 909-6696 (telephone)(212) 521-7696 (facsimile)Attorneys for Plaintiff Bayer HealthCare LLCUNITED STATES DISTRICTCOURTSOUTHERN DISTRICTOF NEW YORK  ––––––––––––––––––––––––––––––––––––––––––––––– xBAYER HEALTHCARE LLC,Plaintiff,v.CIPLA LTD., VERITAS PHARMA PTE. LTD. d/b/a OTCPET MEDS, RONIN VENTURES PTE. LTD. d/b/aTRUSTED PET MEDS, OKPET.COM, ARCHIPELAGOSUPPLIERS PTYLTD d/b/a FREEDOM-PHARMACY.COM and USAPHARMACYPILLS.COM,HEALTHYCHOICE PHARMACY.COM INC. d/b/a THEPHARMACYEXPRESS, and ABC COMPANIES 1-100,Defendants.::::::::::::::::11 CIV. 6347 (PKC)ECF CASE ––––––––––––––––––––––––––––––––––––––––––––––– x
COMPLAINTANDDEMANDFORJURYTRIAL
Plaintiff Bayer HealthCare LLC (“Bayer”), by its attorneys, Debevoise &Plimpton LLP, for its complaint against (1) Cipla Ltd. (“Cipla”) and (2) Veritas PharmaPte. Ltd., d/b/a OTC Pet Meds, Ronin Ventures Pte. Ltd. d/b/a Trusted Pet Meds,
Case 1:11-cv-06347-PKC Document 1 Filed 09/12/11 Page 1 of 44
 
2OKPet.com, Archipelago Suppliers Pty Ltd d/b/a Freedom-Pharmacy.com andUSAPharmacyPills.com, Healthy Choice Pharmacy.com Inc. d/b/a The PharmacyExpress, and the ABC Company defendants (the “Website Defendants”) (together withCipla, the “Defendants”), alleges as follows:
INTRODUCTION
1. Cipla, the Indian pharmaceutical giant, and its website partners are engagedin an unlawful campaign to deceive U.S. consumers into believing that Cipla’s petmedicines are made by Bayer. Cipla’s latest copycat pet medicine – DA DOUBLEADVANTAGE – is a blatant rip off of Bayer’s ADVANTAGE trademark, which Bayer has used continuously since 1996 in connection with its line of products for the control of fleas and other pests on pets. In an unsuccessful effort to avoid being subjected to U.S. jurisdiction, Cipla does not itself sell DA DOUBLE ADVANTAGE to U.S. customers;rather, it relies on its website partners to complete the sales. Cipla’s website partnershave exacerbated these violations by falsely advertising DA DOUBLE ADVANTAGE as“equivalent” to or the “generic” version of Bayer pet medicines sold in the United States;in fact, Cipla’s medicines are not only materially different from the medicines Bayer sellsin the United States, but they also have not been approved by the EnvironmentalProtection Agency (“EPA”) and are thus prohibited from sale in the United States. Insome cases the website partners have also unlawfully shipped gray market products intothe United States.
Case 1:11-cv-06347-PKC Document 1 Filed 09/12/11 Page 2 of 44
 
32. Accordingly, Bayer has filed this action for trademark counterfeiting andinfringement, false advertising, deceptive acts and practices, trademark dilution andunfair competition to put an end to Cipla’s and its website partners’ campaign of deception.3. Bayer’s ADVANTAGE trademark is among the most well-known marks inthe category of pet medicines for dogs and cats. Through fifteen years and many millionsof dollars of sales, Bayer has built up significant goodwill in the ADVANTAGE mark.Currently, Bayer manufactures and sells two ADVANTAGE products in the UnitedStates: ADVANTAGE MULTI, a heartworm and flea preventative for dogs and cats,and ADVANTAGE II, a flea and other parasite preventative for dogs and cats. Bayer also markets K9 ADVANTIX II, a flea and tick preventative specifically designed for dogs, which cannot beused on cats because one of its ingredients cannot be metabolized by, and can be toxic to, cats.4. In a bad faith attempt to deceive consumers and trade off the fame of Bayer’s ADVANTAGE mark, Cipla has introduced a knock-off flea and tick preventativenamed DA DOUBLE ADVANTAGE. DA DOUBLE ADVANTAGE counterfeitsBayer’s ADVANTAGE trademark and will deceive consumers by leading them to believe the product comes from, or is made with the permission or approval of, Bayer.5. Even worse, the name Cipla has selected for this product risks confusingconsumers into believing that the product can be used on cats (like Bayer’s
Case 1:11-cv-06347-PKC Document 1 Filed 09/12/11 Page 3 of 44

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