Nexxt Spine Answer, Affirmative Defenses, and Counterclaim

Case 1:23-cv-01960-JRS-MKK Document 19 Filed 12/22/23 Page 1 of 22 PageID #: 87
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
S ECADA M EDICAL LLC D / B / A Case No. 1:23-cv-01960-JRS-MKK

V ENTRIS M EDICAL , LLC,
Plaintiff and Counterclaim
Defendant,
v.
N EXXT S PINE , LLC,
Defendant and
Counterclaimant.
NEXXT SPINE, LLC’S ANSWER, AFFIRMATIVE DEFENSES, AND

COUNTERCLAIM WITH DEMAND FOR JURY TRIAL
Defendant and Counterclaimant Nexxt Spine, LLC (“Nexxt Spine”), in accordance with
Rule 8(b) of the Federal Rules of Civil Procedure, answers the Complaint and Demand for Jury
Trial (the “Complaint”) filed by Plaintiff and Counterclaim Defendant Secada Medical LLC
d/b/a Ventris Medical, LLC (“Ventris”) as follows:
NATURE OF THE ACTION
1. Ventris develops, markets, and sells innovative tissue and bone healing products
to address the procedural needs of general, plastic, vascular, orthopedic, and spinal surgeons.
ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 1 of the Complaint and therefore denies those
allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.
2. Among its suite of products for surgeons, Ventris offers a surgical matrix product
for management of complex wounds called CONNEXT®. Ventris has been continuously offering
this product under the CONNEXT® mark for many years.

3. Defendant Nexxt Spine, which has no affiliation with Plaintiff, recently adopted
and is using the mark CONNEXX for a surgical implant kit. Defendant also owns intent-to-use
federal trademark Application Serial No. 97503747 for CONNEXX (the “CONNEXX
Application”).
ANSWER: Nexxt Spine admits that it has no affiliation with Plaintiff and that it is the
owner of federal trademark application serial no. 97503747 for the mark CONNEXX intended to
be used in connection with an orthopaedic implant kit comprised of screws, rods, hooks and
connectors made of artificial materials as well as surgical instrumentation for implanting the
aforesaid components within the spine. Nexxt Spine denies all remaining allegations in
paragraph 3 of the Complaint.
4. Defendant offers its CONNEXX product to the same surgeons and other medical
professionals in the same hospitals as the CONNEXT product offered and sold by Plaintiff. As
such, Defendant is likely to cause consumer confusion and deceive the public regarding the
source, sponsorship, and/or affiliation of its goods through use of its infringing CONNEXX
mark.
about whether it offers its INERTIA CONNEXX orthopaedic implant kit product to the same
surgeons and other medical professionals in the same hospitals as the CONNEXT product
offered and sold by Plaintiff and therefore denies those allegations by operation of Rule 8(b)(5)
2
of the Federal Rules of Civil Procedure. Nexxt Spine denies all remaining allegations in
5. The CONNEXT and CONNEXX marks are virtually identical from visual, aural,
and conceptual perspectives, and Defendant’s goods are highly related to the goods offered by
Plaintiff.
ANSWER: Nexxt Spine denies the allegations in paragraph 5 of the Complaint.
6. Defendant’s use of the CONNEXX mark infringes Plaintiff’s CONNEXT mark
and constitutes false designation of origin and unfair competition under the federal Lanham Act.
7. Plaintiff therefore brings this action to end Defendant’s infringement of Plaintiff’s
valuable CONNEXT mark. Plaintiff seeks to enjoin Defendant’s infringing conduct and to
recover damages and costs that it has sustained as a result of Defendant’s intentional use of the
confusingly similar CONNEXX mark.
ANSWER: Nexxt Spine admits that Plaintiff has sued it. Nexxt Spine denies there is
any legal or factual basis for the lawsuit and denies all remaining allegations in paragraph 7 of
the Complaint.
PARTIES
8. Plaintiff is a California limited liability company with its principal place of
business at 1201 Dove Street, Suite 470, Newport Beach, CA 92660.
9. Defendant is an Indiana limited liability company with its principal place of
3
business at 14425 Bergen Blvd, Suite B, Noblesville, IN 46060.
ANSWER: Nexxt Spine admits the allegations in paragraph 9 of the Complaint.
JURISDICTION AND VENUE
10. This action arises under the federal trademark statute (the “Lanham Act”), 15
U.S.C. § 1051 et seq.
ANSWER: Nexxt Spine admits that Ventris has sued it under the Lanham Act. Nexxt
Spine denies there is any legal or factual basis for the lawsuit and denies all remaining
allegations in paragraph 10 of the Complaint.
11. This court has original jurisdiction over the federal trademark and unfair
competition claims pursuant to 15 U.S.C. §§ 1114, 1121, 1125, and 28 U.S.C. §§ 1331, 1338,
and 1367.
12. This Court has personal jurisdiction over Defendant because, upon information
and belief, Defendant conducts business within the State of Indiana and this judicial district;
Defendant has advertised, promoted, and sold its CONNEXX medical product in the State of
Indiana and this judicial district; the causes of action asserted in this Complaint arise out of
Defendant’s contacts with the State of Indiana and this judicial district; Defendant has caused
tortious injury to Plaintiff in this judicial district; and Defendant has sufficient minimum
contacts with the State of Indiana through its business and activities offered or conducted in the
State of Indiana such that the maintenance of this suit does not offend traditional notions of fair
play and substantial justice.
ANSWER: Nexxt Spine admits that the Court has personal jurisdiction over it, that it
conducts business within the State of Indiana, including in this judicial district, and that it has
4
advertised, promoted, and sold its INERTIA CONNEXX orthopaedic implant kit in the State of
Indiana, including in this judicial district. Nexxt Spine denies all remaining allegations in
13. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (c)
because Plaintiff conducts business within the State of Indiana and this judicial district;
Defendant has its principal place of business in this judicial district; Defendant has advertised,
promoted, and sold its CONNEXX medical product to consumers in the State of Indiana and
this judicial district; the causes of action asserted in this Complaint arise out of Defendant’s
contacts with the State of Indiana and this judicial district; and Defendant has caused tortious
injury to Plaintiff in this judicial district.
ANSWER: Nexxt Spine admits that venue is proper in this judicial district, that it
conducts business within the State of Indiana, including in this judicial district, that it has its
principal place of business in this judicial district, and that it has advertised, promoted, and sold
its INERTIA CONNEXX orthopaedic implant kit to consumers in the State of Indiana, including
in this judicial district. Nexxt Spine denies all remaining allegations in paragraph 13 of the
Complaint.
FACTUAL ALLEGATIONS
PLAINTIFF AND THE CONNEXT MARK
14. Plaintiff is a biologics company focused on quality, innovative design, and
processing of best-in-class products for optimal surgical outcomes. Ventris offers a variety of
allograft, synthetic, and bioactive products for soft and hard tissue applications. Its products
adhere to Current Good Tissue Practices and are regulated by the FDA Center for Biologics
Evaluation and Research.
5
15. Since at least as early as October 2018, Ventris has offered and sold a bovine
collagen indicated for the management of surgical wounds under the mark CONNEXT® (the
“CONNEXT Mark”).
16. The CONNEXT product has been extensively advertised and promoted in the
United States, including online through the Ventris Medical website
(https://www.ventrismedical.com/connext/), and marketed to hospitals, insurance companies, and
medical professionals.
17. Plaintiff has devoted substantial time, effort, and resources to the development
and promotion of the CONNEXT Mark and product.
18. On January 1, 2019, the United States Patent & Trademark Office (“PTO”) issued
to Plaintiff U.S. Trademark Registration No. 5,645,141 for the CONNEXT Mark in connection
6
with “[s]ynthetic materials, namely, bovine collagen used for tissue healing for medical
purposes” in Class 5.
19. A true and accurate copy of Plaintiff’s federal trademark registration for the
CONNEXT Mark is attached hereto as Exhibit A. In addition to this registration, Plaintiff owns
common law rights in the CONNEXT Mark as a result of its extensive use and promotion of the
mark in commerce.
20. The CONNEXT registration is in full force and effect on the PTO’s Principal
Register and gives rise to a presumption in favor of Plaintiff with respect to validity, ownership,
and exclusive rights to use the CONNEXT Mark throughout the United States.
21. By virtue of its use and federal registration, Plaintiff has the exclusive right to use
the CONNEXT Mark, as well as marks confusingly similar thereto, in commerce in connection
with medical goods indicated for surgical use.
7
DEFENDANT’S APPLICATION FOR CONNEXX AND

UNAUTHORIZED USE OF PLAINTIFF’S MARK
22. On information and belief, Defendant owns intent-to-use Application Serial No.
97/503,747 for CONNEXX covering “[o]rthopaedic implant kit comprised of screws, rods,
hooks and connectors made of artificial materials as well as surgical instrumentation for
implanting the aforesaid components within the spine” in Class 10 (the “CONNEXX
Application”).
23. On information and belief, Defendant also owns and operates the website at
www.nexxtspine.com, which includes a page dedicated to its CONNEXX product at
https://nexxtspine.com/products/inertia/inertia-connexx/. A true and accurate screenshot from
this website is copied below.
ANSWER: Nexxt Spine admits it owns and operates the website at
www.nexxtspine.com and the aforementioned website includes a page featuring information on
8
its INERTIA CONNEX orthopaedic implant kit at
https://nexxtspine.com/products/inertia/inertia-connexx/. Nexxt Spine denies all remaining
allegations in paragraph 23 of the Complaint.
24. Defendant’s CONNEXX mark is nearly identical to Plaintiff’s CONNEXT Mark,
with the only difference being in the final letter (“X” as opposed to “T”).
25. Defendant’s CONNEXX products are offered through the same marketing and
trade channels and to the same customers as Plaintiff’s products. Both products are sold to the
same hospitals, insurance companies, and medical professionals. Both parties’ respective goods
are offered and provided via the same channels of trade.
26. Plaintiff began using the CONNEXT trademark nearly five years ago and well
before Defendant’s adoption of the confusingly similar CONNEXX trademark. Furthermore,
Plaintiff obtained a U.S. registration for the CONNEXT trademark and acquired recognition in
the general consuming public well prior to Defendant’s application for and use of the virtually
identical CONNEXX mark.
ANSWER: Nexxt Spine denies its use of the term CONNEXX is confusingly similar
to the CONNEXT mark. Nexxt Spine lacks knowledge or information sufficient to form a belief
about the truth of the remaining allegations in paragraph 26 of the Complaint and therefore
denies those allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.
9
27. In or around July of 2023, Plaintiff became aware of Defendant’s intent-to-use
application for the CONNEXX mark. Defendant’s application was published on July 4, 2023,
and Plaintiff therefore timely filed an extension of time to oppose the application on July 31,
2023.
ANSWER: Nexxt Spine admits that its intent-to-use application for the CONNEXX
mark was published on July 4, 2023, and that Ventris filed an extension of time to oppose the
application on July 31, 2023. Nexxt Spine lacks knowledge or information sufficient to form a
belief about the truth of the remaining allegations in paragraph 27 of the Complaint and therefore
denies those allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.
28. Plaintiff’s counsel spoke with Defendant’s counsel on August 10, 2023, regarding
Plaintiff’s concerns about Defendant’s use of the CONNEXX mark. On September 5, 2023,
Defendant’s counsel replied by email that Defendant had no intention of abandoning the
CONNEXX Application or ceasing use of the CONNEXX mark.
ANSWER: Nexxt Spine admits Plaintiff’s counsel spoke with defendant’s counsel on
August 10, 2023, regarding plaintiff’s concerns about defendant’s use of CONNEXX creating
confusion as to source. Nexxt Spine further admits that defendant’s counsel replied by email to
plaintiff’s counsel on September 5, 2023 providing several reasons why plaintiff’s concerns
regarding confusion were unfounded and as such, declined plaintiff’s demand to cease and desist
use of CONNEXX and abandon the federal application for CONNEXX, but at the same time
would be open to further discussing the matter. Without contacting Nexxt Spine’s counsel to
discuss further, Plaintiff filed this action on November 1, 2023.
29. As of the date of this Complaint, Defendant continues to use the CONNEXX
mark to offer its highly-related surgical products. Defendant’s failure to comply with Plaintiff’s
10
requests demonstrates a deliberate intent to continue to willfully infringe Plaintiff’s rights in its
CONNEXT Mark.
ANSWER: Nexxt Spine admits that it continues to use INERTIA CONNEXX in
connection with its orthopaedic implant kit. Nexxt Spine denies all remaining allegations in
30. Defendant’s unauthorized use of the CONNEXX mark is misleading and is likely
to confuse consumers into believing that Defendant’s products are authorized by, sponsored by,
or otherwise affiliated with or approved by Plaintiff.
31. Defendant’s infringing use of the CONNEXX mark is knowing and willful.
COUNT I
FEDERAL TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 11
32. Plaintiff realleges and incorporates by this reference paragraphs 1 through 32 of
this Complaint as if fully set forth herein.
ANSWER: Nexxt Spine incorporates it answers to the preceding allegations as though
fully set forth herein.
33. Plaintiff owns the distinctive, valid, protectable, and federally registered
CONNEXT Mark.
11
34. Defendant has used the CONNEXX mark in commerce to advertise and offer
Defendant’s surgical products.
ANSWER: Nexxt Spine admits it has used the INERTIA CONNEXX mark to
advertise and offer its orthopaedic implant kit. Nexxt Spine denies all remaining allegations in
35. Defendant is not affiliated or associated with Plaintiff or its goods, and Plaintiff
does not approve or sponsor Defendant or Defendant’s goods.
36. Defendant’s activities as described herein are likely to result in confusion,
mistake, or deception and cause the public to believe that Plaintiff has produced, sponsored,
authorized, licensed, or is otherwise connected or affiliated with Defendant’s goods, all to the
detriment of Plaintiff.
37. Upon information and belief, Defendant’s acts are deliberate and intended to
confuse the public as to the source of Defendant’s goods and to injure Plaintiff and reap the
benefit of Plaintiff’s goodwill associated with Plaintiff’s trademark.
38. As a direct and proximate result of Defendant’s willful and unlawful conduct,
Plaintiff has been injured and will continue to suffer injury to its business and reputation unless
Defendant is restrained by this Court from infringing Plaintiff’s trademark.
39. The actions of Defendant described above constitute trademark infringement in
violation of 15 U.S.C. § 1114(1).
12
40. Plaintiff has been, and will continue to be, damaged and irreparably harmed by
the actions of Defendant, which will continue unless Defendant is enjoined by this Court.
Plaintiff has no adequate remedy at law in that the amount of harm to Plaintiff’s business and
reputation and the diminution of the goodwill of the CONNEXT Mark are difficult to ascertain
with specificity. Plaintiff is therefore entitled to injunctive relief pursuant to 15 U.S.C. § 1116.
41. Plaintiff is entitled to actual monetary damages in an amount to be determined at
trial and to any profits made by Defendant attributable to its infringing activities.
42. Defendant’s infringement of the registered CONNEXT Mark is deliberate, willful,
fraudulent, and without extenuating circumstances, and constitutes a knowing use of Plaintiff’s
trademark. Defendant’s infringement is thus an “exceptional case” within the meaning of section
35(a) of the Lanham Act, 15 U.S.C. § 1117(a). Plaintiff is therefore entitled to recover three
times the amount of its actual damages and the attorneys’ fees and costs incurred in this action,
as well as prejudgment interest.
COUNT II
FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN

UNDER 15 U.S.C. § 1125(A)
43. Plaintiff realleges and incorporates by this reference paragraphs 1 through 43 of
this Complaint as if fully set forth herein.
13
44. Plaintiff owns the distinctive, valid, protectable, and registered CONNEXT Mark.
45. Defendant’s use of the CONNEXX mark in commerce to advertise, offer, and sell
Defendant’s surgical products is without Plaintiff’s permission or authority and is in total
disregard of Plaintiff’s rights to control its trademarks.
46. Defendant’s actions as described herein are likely to cause confusion, mistake,
and deception among ordinary consumers as to the affiliation, connection, or association of
Defendant with Plaintiff, as to the true source of Defendant’s goods, and as to the sponsorship or
approval of Defendant or Defendant’s services by Plaintiff.
47. Defendant’s acts have damaged and will continue to damage Plaintiff, and
Plaintiff has no adequate remedy at law.
48. Defendant’s actions constitute unfair competition and false designation of origin
in violation of 15 U.S.C. § 1125(a).
49. In light of the foregoing, Plaintiff is entitled to injunctive relief prohibiting
Defendant from using or applying for registration of the CONNEXX mark or any marks
confusingly similar thereto, and to recover all damages, including attorneys’ fees, that Plaintiff
has sustained and will sustain, and all gains, profits, and advantages obtained by Defendant as a
14
result of its infringing acts alleged above in an amount not yet known, and costs pursuant to 15
U.S.C. §1117, as well as prejudgment interest.
COUNT III
COMMON LAW TRADEMARK INFRINGEMENT, UNFAIR COMPETITION,

AND PASSING OFF
50. Plaintiff realleges and incorporates herein by this reference paragraphs 1 through
50 of this Complaint as if fully set forth here.
51. Plaintiff owns common law trademark rights in its CONNEXT Mark in the State
of Indiana and throughout the United States, and all such rights owned by Plaintiff are superior
to any rights that Defendant may claim to have in the CONNEXX mark.
52. Defendant’s unauthorized use of the CONNEXX mark in connection with surgical
products is likely to cause confusion as to the source or sponsorship of these services, and is
likely to lead the public to believe that Plaintiff is affiliated with or sponsors or endorses
Defendant and/or Defendant’s goods, and is likely to mislead persons in the ordinary course of
purchasing Defendant’s goods, thereby injuring the reputation and goodwill and unjustly
diverting from Plaintiff to Defendant the benefits arising therefrom.
15
53. Defendant’s unlawful activities constitute trademark infringement, unfair
competition, and passing off as proscribed by common law.
54. Defendant’s acts of trademark infringement, unfair competition, and passing
off were committed, or will imminently be committed, willfully, knowingly, intentionally,
and in bad faith.
55. Defendant’s acts or intended acts of trademark infringement, unfair competition,
and passing off, unless enjoined by this Court, will threaten to cause Plaintiff irreparable
damage, loss, and injury for which Plaintiff has no adequate remedy at law.
AFFIRMATIVE DEFENSES
Nexxt Spine, in accordance with Rule 8(c) of the Federal Rules of Civil Procedure,
asserts the following affirmative defenses:
1. The Complaint fails to state a claim upon which relief can be granted.
2. Nexxt Spine’s use of the CONNEXX mark creates no likelihood of confusion.
3. The CONNEXT mark is merely descriptive of Ventris’s bovine collagen product
and lacks acquired distinctiveness and, as such, fails to identify source and function as a
trademark.
4. Ventris’s claims are barred by unclean hands.
5. Ventris’s claims are barred by fraud because Ventris committed fraud in the
procurement of its federal trademark registration for CONNEXT by knowingly making a false
and material representation of fact when its counsel informed the United States Patent and
16
Trademark Office on March 16, 2018 that the wording “CONNEXT” had no meaning other than
trademark significance.
Discovery and investigation continue, and Nexxt Spine reserves the right to assert
additional affirmative defenses as warranted by that discovery and investigation.
COUNTERCLAIM TO CANCEL FEDERAL REGISTRATION
For its Counterclaim for cancellation of U.S. Federal Trademark Registration No.
5,645,141 (the “CONNEXT Registration”), Nexxt Spine alleges as follows:
FACTS COMMON TO ALL COUNTS
1. Nexxt Spine is an Indiana limited liability company with its principal place of
business at 14425 Bergen Blvd, Suite B, Noblesville, IN 46060.
2. Nexxt Spine is a medical device company that manufactures American-made
spinal implants and instruments that are regulated by the FDA Center for Devices and
Radiological Health.
3. Ventris is a California limited liability company which lists its principal place of
business at 1201 Dove Street, Suite 470, Newport Beach, CA 92660.
4. Ventris describes itself as a biologics company that provides tissue healing
products.
5. This Court has subject matter jurisdiction over Nexxt Spine’s counterclaims
because they arise under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338.
6. Ventris purports to own the exclusive rights to use the mark CONNEXT based in
part on the CONNEXT Registration, the application for which was filed on January 3, 2018, as
application serial number 87742211 (the “CONNEXT Application”).
17
7. The United States Patent and Trademark Office (“USPTO”) issued an Examiner’s
Amendment for the CONNEXT Application on March 16, 2018.
8. According to USPTO records, Peter J. Willsey was the attorney of record for the
CONNEXT Application when it was filed and remained the attorney of record when the
Examiner’s Amendment was issued.
9. Pursuant to 37 C.F.R. §2.61(b), the USPTO may require a trademark applicant to
“furnish such information, exhibits, affidavits or declarations, and such additional specimens as
may be reasonably necessary to the proper examination of the application.”
10. According to the Examiner’s Amendment, Peter J. Willsey authorized the
following amendment to the CONNEXT Application on March 16, 2018 (the “Significance
Amendment”):
“Significance of the Mark
The following statement is added to the record:
The wording ‘CONNEXT’ has no meaning other than trademark significance.
See 37 C.F.R. §2.61(b); TMEP §808.01(a).”
(emphasis in original)
11. On information and belief, the Significance Amendment was entered as a result of
a phone conversation between the Trademark Examining Attorney for the CONNEXT
Application and Mr. Willsey on March 16, 2018, during which the Trademark Examining
Attorney inquired of Mr. Willsey whether the term “CONNEXT” had any significance in the
relevant trade or industry or as used in connection with the goods listed in the application, and
Mr. Willsey denied any such significance.
18
12. The Examiner’s Amendment instructed Ventris that it should “Please advise the
undersigned immediately of any objections” to the amendment. Ventris did not object to the
amendment.
COUNT I: CANCELLATION FOR MERE DESCRIPTIVENESS
13. Nexxt Spine realleges and incorporates herein by this reference paragraphs 1
through 12 as if fully set forth here.
14. The term “CONNEXT” is merely descriptive of Ventris’s bovine collagen used
for tissue healing for medical purposes.
15. The term “CONNEXT” is seen by relevant purchasers and users as an intentional
and slight misspelling of the term “CONNECT.” Therefore, the term “CONNEXT” would be
seen as the phonetic and legal equivalent of “CONNECT.”
16. The term “CONNECT” means to become joined or to join or fasten together.
17. Collagen is the main structural protein in the extracellular matrix found in the
body's various connective tissues. Collagen is used to make connective tissue, which is a type of
tissue that connects other tissues.
18. The term “CONNEXT” is merely descriptive of a characteristic, function, feature
or purpose of Ventris’s bovine collagen used for tissue healing for medical purposes because
Ventris’s product is made of the main structural protein of connective tissue, i.e., collagen, and
because it is used to promote tissue connection in wound healing.
19. Ventris has not shown and cannot show that the term “CONNEXT” has acquired
distinctiveness.
19
20. As a descriptive term without secondary meaning, the term “CONNEXT” does
not distinguish Ventris’s CONNEXT product from other bovine collagen used for tissue healing
for medical purposes and fails to function as a trademark.
21. Because the CONNEXT Registration exceeds the scope of permissible
registration under 15 U.S.C. § 1052(e)(1), which prohibits registration of merely descriptive
terms, the CONNEXT Registration is subject to cancellation pursuant to 15 U.S.C. § 1064.
22. Nexxt Spine will be damaged if the CONNEXT Registration continues to exist
because Ventris has asserted alleged rights in the CONNEXT Registration and the term
CONNEXT in its Complaint, and the registration would be prima facie evidence of the validity
of the mark, of Ventris’s ownership of the mark, and of Ventris’s exclusive right to use the mark
in commerce in connection with the goods described in the CONNEXT Registration, when in
fact Ventris is not entitled to such rights.
23. The CONNEXT Registration should be cancelled pursuant to 15 U.S.C. §§ 1052
and 1064.
COUNT II: CANCELLATION FOR FRAUD ON THE USPTO
24. Nexxt Spine realleges and incorporates herein by this reference paragraphs 1
through 23 as if fully set forth here.
25. On information and belief, Mr. Willsey on behalf of Ventris represented to the
Trademark Examining Attorney on March 16, 2018, that the term “CONNEXT” has no
significance in the relevant trade or industry or as used in connection with the goods listed in the
CONNEXT Application. Further, neither Mr. Willsey, nor anyone else on behalf of Ventris,
objected to the Significance Amendment which stated that “The wording ‘CONNEXT’ has no
meaning other than trademark significance.”
20
26. The representation made by Mr. Willsey was false at the time it was made
because the term “CONNEXT” would be seen as the phonetic and legal equivalent of
“CONNECT” and Ventris’s product is made of connective tissue, i.e., collagen, and is used to
promote tissue connection in wound healing.
27. Mr. Willsey’s representation was material because, but for such false
representation, the USPTO would not have granted Ventris’s request and issued the CONNEXT
Registration.
28. On information and belief, Mr. Willsey knew the representation was false when
he made it or made the representation with reckless disregard for the truth and failed to correct
the record upon receiving the Examiner’s Amendment.
29. On information and belief, Mr. Willsey made the representation to mislead the
USPTO and cause the USPTO to issue the CONNEXT Registration.
30. Nexxt Spine will be damaged if the CONNEXT Registration continues to exist
because Ventris has asserted alleged rights in the CONNEXT Registration and the term
CONNEXT in its Complaint, and the registration would be prima facie evidence of the validity
of the mark, of Ventris’s ownership of the mark, and of Ventris’s exclusive right to use the mark
in commerce in connection with the goods described in the CONNEXT Registration, when in
fact Ventris is not entitled to such rights.
31. Ventris obtained the CONNEXT Registration fraudulently and it should be
cancelled pursuant to 15 U.S.C. § 1064.
WHEREFORE, for the foregoing reasons, Nexxt Spine respectfully requests that the
Court enter judgment as follows:
A. Dismissing Ventris’s claims against Nexxt Spine with prejudice.
21
B. On Nexxt Spine’s Counterclaims, ordering that the United States Patent and
Trademark Office cancel the CONNEXT Registration pursuant to 15 U.S.C. §§
1052 and1064.
C. Awarding Nexxt Spine its attorneys’ fees and costs.
D. Granting Nexxt Spine such other and further relief as the Court may deem just
and proper.
DEMAND FOR JURY TRIAL
Nexxt Spine, in accordance with Rule 38 of the Federal Rules of Civil Procedure and
Local Rule 38-1, hereby demands a trial by jury on all issues in the Complaint and Counterclaim
so triable.
F ROST B ROWN T ODD LLP
By: /s/Darren A. Craig

Darren A. Craig, #25534-49
Matthew J. Clark, #31263-49
111 Monument Circle, Suite 4500
P.O. Box 44961
Indianapolis, IN 46244-0961
Telephone: (317) 237-3800
Facsimile: (317) 237-3900
Email: dcraig@fbtlaw.com
mclark@fbtlaw.com
Attorneys for Defendant Nexxt Spine, LLC
0141151.0776101 4890-3217-4487v5
22

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Case 1:23-cv-01960-JRS-MKK Document 19 Filed 12/22/23 Page 1 of 22 PageID #: 87

UNITED STATES DISTRICT COURT

S ECADA M EDICAL LLC D / B / A Case No. 1:23-cv-01960-JRS-MKK

NEXXT SPINE, LLC’S ANSWER, AFFIRMATIVE DEFENSES, AND

d/b/a Ventris Medical, LLC (“Ventris”) as follows:

NATURE OF THE ACTION

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

this product under the CONNEXT® mark for many years.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

paragraph 3 of the Complaint.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

paragraph 4 of the Complaint.

ANSWER: Nexxt Spine denies the allegations in paragraph 5 of the Complaint.

6. Defendant’s use of the CONNEXX mark infringes Plaintiff’s CONNEXT mark

ANSWER: Nexxt Spine denies the allegations in paragraph 6 of the Complaint.

7. Plaintiff therefore brings this action to end Defendant’s infringement of Plaintiff’s

confusingly similar CONNEXX mark.

8. Plaintiff is a California limited liability company with its principal place of

business at 1201 Dove Street, Suite 470, Newport Beach, CA 92660.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

9. Defendant is an Indiana limited liability company with its principal place of

business at 14425 Bergen Blvd, Suite B, Noblesville, IN 46060.

ANSWER: Nexxt Spine admits the allegations in paragraph 9 of the Complaint.

JURISDICTION AND VENUE

U.S.C. § 1051 et seq.

allegations in paragraph 10 of the Complaint.

ANSWER: Nexxt Spine admits the allegations in paragraph 11 of the Complaint.

play and substantial justice.

paragraph 12 of the Complaint.

injury to Plaintiff in this judicial district.

PLAINTIFF AND THE CONNEXT MARK

14. Plaintiff is a biologics company focused on quality, innovative design, and

Evaluation and Research.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

United States, including online through the Ventris Medical website

(https://www.ventrismedical.com/connext/), and marketed to hospitals, insurance companies, and

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

and promotion of the CONNEXT Mark and product.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

ANSWER: Nexxt Spine lacks knowledge or information sufficient to form a belief

allegations by operation of Rule 8(b)(5) of the Federal Rules of Civil Procedure.

with medical goods indicated for surgical use.

ANSWER: Nexxt Spine denies the allegations in paragraph 21 of the Complaint.

DEFENDANT’S APPLICATION FOR CONNEXX AND

ANSWER: Nexxt Spine admits the allegations in paragraph 22 of the Complaint.

www.nexxtspine.com, which includes a page dedicated to its CONNEXX product at

https://nexxtspine.com/products/inertia/inertia-connexx/. A true and accurate screenshot from

this website is copied below.

ANSWER: Nexxt Spine admits it owns and operates the website at

www.nexxtspine.com and the aforementioned website includes a page featuring information on

its INERTIA CONNEX orthopaedic implant kit at