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Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 1 of 13

Elizabeth Tedesco Milesnick, OSB No. 050933
emilesnick@idealegal.com
Andrea Selkregg, OSB No. 092595
aselkregg@idealegal.com
IDEALEGAL
2240 N Interstate Ave., Ste. 270
Portland, Oregon 97227
Telephone: (503) 902-5760

Attorneys for Plaintiff Therapia P.C.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

THERAPIA P.C., an Oregon corporation, Case No. 3:18-cv-909

Plaintiff, COMPLAINT FOR TRADEMARK
INFRINGEMENT
v.
(Unfair Competition; Common Law Trademark
THERAPYDIA, INC., a Delaware Infringement; Unjust Enrichment)
corporation,
DEMAND FOR JURY TRIAL
Defendant.

Plaintiff Therapia P.C. alleges as follows:

INTRODUCTION

1. This is an action at law and in equity for trademark infringement and

unfair competition under the Trademark Act of 1946, 15 USC §§ 1051 et seq. (2002)

(“Lanham Act”); and for trademark infringement and unjust enrichment at common law.

Page 1 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 2 of 13

2. Plaintiff Therapia P.C. (“Therapia”) has built up the THERAPIA

trademark over the course of seven years, providing alternative medical services such as

acupuncture, chiropractic therapy, massage, fertility consultation and treatment, and herbal

medicine in Portland, Oregon with the utmost attention to customer service. At a time when

Therapia’s presence was readily discoverable on the internet, defendant Therapydia, Inc.

(“Therapydia”) began using the mark THERAPYDIA for physical therapy and wellness

consulting services, first in California and then in Portland, Oregon with an aggressive

corporate marketing campaign, willfully infringing the THERAPIA trademark as alleged

below, and causing consumer confusion with respect to the source, sponsorship, or approval

of both Therapia and Therapydia’s goods and services, causing irreparable harm to

Therapia’s business, goodwill, and reputation for warm, collaborative, and thoughtful patient

care.

JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction under Section 39 of the

Lanham Act, 15 USC § 1121, and under 28 USC §§ 1331 and 1338. This Court has

jurisdiction over Therapia’s related state and common-law claims pursuant to 28 USC

§§ 1338 and 1367.

4. This Court has personal jurisdiction over Therapydia because, on

information and belief, Therapydia owns and operates four physical therapy clinics in and

around Portland, Oregon, and has engaged in acts or omissions within this State, causing

injury within this State, or has otherwise made or established contacts within this State

Page 2 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 3 of 13

sufficient to permit the exercise of personal jurisdiction. Furthermore, Therapydia is

registered to do business in Oregon and is for that reason also subject to personal jurisdiction

in Oregon.

5. This District is a proper venue pursuant to 28 USC § 1391(b)(2)

because a substantial part of the events or omissions giving rise to plaintiffs’ claims occurred

in this District.

THE PARTIES

6. Plaintiff Therapia is a corporation organized and existing under the

laws of the State of Oregon having its principal place of business at 2505 SW Spring Garden,

Suite 100, Portland, Oregon 97219.

7. On information and belief, defendant Therapydia is a corporation

organized and existing under the laws of the State of Delaware having its principal place of

business at 18 E. Blithedale Avenue, Suite 21, Mill Valley, California 94941.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

8. President Tara Nikzi founded the Therapia Wellness Clinic in Portland,

Oregon in April 2011, using the mark THERAPIA to provide alternative medical services

such as acupuncture, chiropractic therapy, massage, fertility consultation and treatment, and

herbal medicine. Since that time, the practice has grown to 10 providers, with clients

throughout Oregon and Southwest Washington, treating medical conditions including,

among others, back, neck, shoulder, arm, and hip pain.

Page 3 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 4 of 13

9. Therapia used the THERAPIA mark to promote the clinic’s services

online as early as April 12, 2011, as well as on social media including Facebook, YouTube,

and Twitter, and beginning in 2012, Instagram.

10. Therapia has common law rights in the mark THERAPIA for medical

and alternative medicine services, such as acupuncture, chiropractic therapy, massage,

fertility consultation and treatment, and herbal medicine, by virtue of Therapia’s continuous

use of the mark beginning in April 2011.

11. Therapia is known in Oregon and Southwest Washington as a source

for collaborative and thoughtful care in a warm, serene environment with attention to design,

beauty, and professionalism. Over the years, the THERAPIA mark has become a valuable

brand and Therapia has established substantial goodwill in connection with the brand.

12. Therapia has expended considerable time, effort, and money in

advertising and publicizing its goods and services bearing the THERPIA mark. In addition

to its social media advertising, Therapia has advertised on Yelp and Google; distributed

pamphlets and flyers throughout Portland and Beaverton, Oregon; held demonstrations and

had booths at health and insurance benefit fairs and other events; sent regular newsletters to

its e-mail community; taken out full-page advertisements in a local coupon book; been listed

in insurance provider’s directories for alternative medical services; and been an in-network

provider of alternative medical services since 2011. Therapia was recently recognized as one

of the Best Natural or Alternative Medicine Clinics by Portland’s weekly newspaper.

Page 4 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 5 of 13

13. As early as April 2011, and continually thereafter, an internet search for

the word “therapia” returned several references to Therapia, with its search-optimized

website on the first page of the search results.

14. On information and belief, on or about October 2013, Therapydia

opened a physical therapy clinic in Portland, Oregon, after having opened one or more clinics

in California later than April 2011. On information and belief, the East Portland, Oregon

clinic provided and continues to provide physical therapy, so-called “wellness assessments,”

sports rehabilitation, pelvic floor therapy, women’s health physical therapy, functional

movement screening, and work rehabilitation, among others. On information and belief, the

opening of the Southeast Portland Therapydia clinic featured acupuncture demonstrations.

15. On information and belief, Therapydia opened its Lake Oswego,

Oregon clinic on or about October 2016; its Beaverton, Oregon clinic on or about September

2017; and another Portland, Oregon clinic on or about March 2018. Each location offers the

same therapies as the East Portland Therapydia clinic, all targeting many of the same areas as

the therapies offered at Therapia, including back, neck, shoulder, arm, leg, and hip pain. The

nearest Therapydia clinic is just 4.5 miles away from Therapia.

16. Therapia learned of Therapydia in approximately mid-2016 when a

patient informed Ms. Nikzi that he had received physical therapy at a clinic called

“Therapydia,” commenting that the clinic’s name was close to THERAPIA. The patient told

Ms. Nikzi that he had spoken with the manager of the Therapydia location about Therapia,

Page 5 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 6 of 13

that the manager already knew about Therapia, and that the two had commented on the

similarity between the THERAPIA and THERAPYDIA names.

17. In January 2018, Therapia began to encounter instances of actual

consumer confusion between the two clinics and their associated services, with many

patients calling Therapia to schedule appointments with Therapydia and consumers

mistaking Therapydia advertisements for Therapia advertisements. In April 2018, one

patient who had scheduled appointments with both Therapia and Therapydia within one

week of one another, believed Therapia’s call confirming her appointment was from

Therapydia, and became frustrated that the company had called with an incorrect

appointment date. She started to cancel the appointment and then realized that the call was

from Therapia. When she arrived for her appointment at Therapia, she commented that the

names were too similar and had caused her confusion.

18. On March 1, 2018, Therapia filed an application with the United States

Patent and Trademark Office (“USPTO”), Serial No. 87817103, to register THERAPIA for

“medical and alternative medicine services” in International Class 44.

19. On information and belief, Therapydia aggressively advertises its

physical therapy and wellness services over the internet, through videos and other advertising

on social media, on the radio in advertisements and interviews, in newspaper articles and

spotlights, through athlete sponsorships, corporate partnerships, and others. On information

and belief, Therapydia now has 11 clinics around the United States, each of which has a

modern, corporate-type aesthetic.

Page 6 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 7 of 13

20. Therapydia’s widespread advertising and promotion, and the location

of its clinics throughout the Portland, Oregon area threaten to compromise Therapia’s

reputation for warm, collaborative, and thoughtful patient care, and have already led to

significant consumer confusion.

21. On information and belief, Therapydia knowingly, willfully, and

intentionally adopted and used its confusingly similar THERAPYDIA mark.

FIRST CLAIM FOR RELIEF

(Infringement of Unregistered Mark THERAPIA)

22. Therapia incorporates the allegations of the foregoing paragraphs as

though fully set forth herein.

23. Therapydia’s use in commerce of THERAPYDIA for the physical

therapy and wellness consulting services has caused and is likely to continue to cause

confusion with Therapia’s use of the trademark THERAPIA for alternative medicine

services, infringing plaintiff’s rights in the THERAPIA trademark.

24. Therapydia knew or had reason to know of plaintiffs’ ownership and

use of the THERAPIA mark and that its use of the mark in connection with physical therapy

and wellness consulting services would infringe Therapia’s mark in violation of

Section 43(a) of the Lanham Act, 15 USC § 1125(a).

25. Therapydia’s actions have caused Therapia irreparable harm and,

unless enjoined, Therapydia’s actions will continue to cause irreparable harm to Therapia’s

business, reputation, and goodwill.

Page 7 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 8 of 13

26. As a result of the trademark infringement as described above, Therapia

is entitled to relief, including injunctive relief, recovery of Therapydia’s profits, actual

damages, reasonable royalty, enhanced profits and damages, costs, and reasonable attorney

fees pursuant to 15 USC §§ 1125(a), 1116, and 1117.

SECOND CLAIM FOR RELIEF

(Federal Unfair Competition)

27. Therapia incorporates the allegations of the foregoing paragraphs as

though fully set forth herein.

28. Therapydia’s use of its THERAPYDIA mark is a false designation of

origin, which is likely to cause and has caused confusion and mistake, and is likely to

deceive and has deceived as to the affiliation, connection, or association of Therapydia with

Therapia, and of Therapia with Therapydia.

29. Therapydia’s actions as alleged herein constitute the use in commerce

of false designations of origin and false or misleading descriptions or representations,

tending to falsely or misleadingly describe and/or represent Therapydia’s products as those

of Therapia, directly and/or secondarily, in violation of 15 USC § 1125(a), and tending to

falsely or misleadingly describe and/or represent Therapia’s products as those of Therapydia.

30. These actions have caused Therapia irreparable harm and, unless

enjoined, Therapydia’s actions will continue to cause irreparable harm to plaintiff’s business,

reputation, and goodwill.

Page 8 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 9 of 13

31. As a result of the unfair competition as described above, Therapia is

entitled to relief, including injunctive relief, recovery of Therapydia’s profits, actual

damages, reasonable royalty, enhanced profits and damages, costs, and reasonable attorney

fees pursuant to 15 USC §§ 1125(a), 1116, and 1117.

THIRD CLAIM FOR RELIEF

(Common Law Trademark Infringement and Unfair Competition)

32. Therapia incorporates the allegations of the foregoing paragraphs as

though fully set forth herein.

33. Therapydia’s actions as described herein constitute common law

trademark infringement and unfair competition in violation of the common law of the State

of Oregon, and have caused and, unless enjoined by this Court, will continue to cause a

likelihood of confusion among consumers, in addition to injury to Therapia’s valuable

reputation and goodwill associated with the THERAPIA mark.

34. These actions have caused Therapia irreparable harm and, unless

enjoined, Therapydia’s actions will continue to cause irreparable harm to Therapia’s

business, reputation, and goodwill.

35. As a result of the common law trademark infringement and unfair

competition described above, Therapia is entitled to relief, including injunctive relief,

recovery of Therapydia’s profits, reasonable royalty, actual damages, and costs.

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Page 9 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 10 of 13

FOURTH CLAIM FOR RELIEF

(Unjust Enrichment)

36. Therapia incorporates the allegations of the foregoing paragraphs as

though fully set forth herein.

37. In committing the acts alleged herein, Therapydia has willfully and

knowingly copied and infringed plaintiff’s THERAPIA mark for its own purposes and, as a

direct and proximate result of its improper acts, Therapydia has been unjustly enriched.

38. Plaintiffs have suffered, and will continue to suffer, loss of profits by

virtue of Therapydia’s conduct and its improper acts have caused and are continuing to cause

irreparable injury to the reputation and goodwill that Therapia has established over the years.

39. Plaintiffs are therefore entitled to an award of Therapydia’s unjust

profits and Therapia’s lost profits.

PRAYER FOR RELIEF

WHEREFORE, Therapia prays for the following relief:

1. A judgment in favor of plaintiffs requiring Therapydia to account for

and pay to plaintiff all profits wrongfully derived by Therapydia through its unlawful acts set

forth herein and awarding Therapia actual damages and/or a reasonable royalty, and

enhanced profits and damages;

2. An order that Therapydia and all its agents, officers, employees,

representatives, successors, assigns, attorneys, and all other persons acting for, with, by,

through, or under authority from Therapydia, or in concert or participation with Therapydia,

are enjoined permanently from:

Page 10 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 11 of 13

a. using the THERAPYDIA mark or any other confusingly similar mark,

including but not limited to THERAPIA, on or in connection with

Therapydia’s goods or services;

b. using any trademark, service mark, name, logo, design, or source

designation of any kind on or in connection with Therapydia’s goods or

services that is a copy, reproduction, colorable imitation, or simulation of,

or confusingly similar to the trademarks, service marks, names, or logos of

Therapia;

c. using any trademark, service mark, name, logo, design, or source

designation of any kind on or in connection with Therapydia’s goods or

services that is likely to cause confusion, mistake, deception, or public

misunderstanding that such goods or services are produced or provided by

Therapia, are sponsored or authorized by Therapia, or are in any way

connected or related to Therapia; and

d. using any trademark, service mark, name, logo, design, or source

designation of any kind on or in connection with Therapydia’s goods or

services that dilutes, tarnishes, or is likely to dilute or tarnish, the

distinctiveness of the trademarks, service marks, names, or logos of

Therapia;

3. An order enjoining Therapydia from using the domain name

www.therapydia.com and ordering Therapydia to transfer the domain to Therapia;

Page 11 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 12 of 13

4. An award to Therapia of its costs (including expert fees),

disbursements, and reasonable attorney fees incurred in this action, together with interest,

including prejudgment interest, pursuant to 15 USC § 1117, ORS 647.105, and the equity

powers of this Court; and

5. Such other and further relief as the Court finds just and equitable.

DATED this 24th day of May, 2018.

IDEALEGAL

/s/ Elizabeth Tedesco Milesnick
Elizabeth Tedesco Milesnick, OSB No. 050933
E-mail: emilesnick@idealegal.com
Andrea Selkregg, OSB No. 092595
E-mail: aselkregg@idealegal.com
Phone: (503) 902-5760

Attorneys for Plaintiff Therapia P.C.

Page 12 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 13 of 13

DEMAND FOR JURY TRIAL

Plaintiff Therapia P.C. hereby demands a trial by jury on all issues so triable.

DATED this 24th day of May, 2018.

IDEALEGAL

/s/ Elizabeth Tedesco Milesnick
Elizabeth Tedesco Milesnick, OSB No. 050933
E-mail: emilesnick@idealegal.com
Andrea Selkregg, OSB No. 092595
E-mail: aselkregg@idealegal.com
Phone: (503) 902-5760

Attorneys for Plaintiff Therapia P.C.

Page 13 - COMPLAINT FOR TRADEMARK INFRINGEMENT
(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM