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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

FOUNDATION SYSTEMS OF MICHIGAN, INC., 

a Michigan corporation, 

 

 Plaintiff 

 Case No.: 

v. 

 

MCHALE CONSTRUCTION, LLC, 

a Michigan limited liability company, 

 

 Defendant. 

 / 

 

 NOW COMES Foundation Systems of Michigan, Inc., a Michigan 

corporation (“FSM”), by and through its undersigned counsel, and submits this 

Complaint against Defendant McHale Construction, LLC (“McHale”), a Michigan 

limited liability company, for trademark infringement, unfair competition, cyberpiracy, and violation of the Michigan Consumer Protection Act. 

THE PARTIES 

1. FSM is a Michigan corporation with a principal place of business in 

Livonia, Michigan. 

2. McHale is a Michigan limited liability company with its primary place 

of business at 23590 Bicking Court, Farmington, Michigan 48336. 

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JURISDICTION AND VENUE 

3. This court has subject matter jurisdiction pursuant to 15 U.S.C. §1121, 

and 28 U.S.C. §1331, as this case arises under the Lanham Act, 15 U.S.C. §§ 1114, 

1125, and the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). 

Personal jurisdiction in this district is proper because Defendant is a citizen of 

Michigan and has solicited and conducted business within the State of Michigan. 

4. Pendent or supplemental jurisdiction of this Court exists for the state 

law claims stated herein, each of which arise out of a common nucleus of operative 

facts with those from which the federal claims arise. 

5. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391. 

FACTUAL ALLEGATIONS 

6. Plaintiff FSM was founded in 2007 by Bob Genord (“Genord”) and is 

the largest foundation repair and waterproofing contractor in Michigan. 

7. FSM began using “FOUNDATION SYSTEMS OF MICHIGAN” and 

“DRY MICH” as trademarks (collectively the “FSM Marks”) immediately after it 

was founded. 

8. FSM has spent millions of dollars since 2008 establishing its identity 

with the FSM Marks. FSM uses the marks on all company promotional materials; 

The DRY MICH mark is used in FSM’s website domain name 

(<DRYMICH.com>), in its jingle, and in its phone number. 

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9. FSM and its FSM Marks have been featured in major media news 

articles. 

10. FSM has an A+ rating from the Better Business Bureau, and received 

Super Service Awards from Angie’s List in 2013 and 2014. 

11. In 2012 McHale began a campaign of misappropriating the FSM 

Marks to create confusion in the marketplace. 

12. McHale created a website at the domain name <drymi.com> in 2012. 

McHale is not commonly known by “DRYMI” in any derivation. Besides the 

domain name <drymi.com>, McHale makes no use of the mark. 

13. In proceedings under the Uniform Domain-Name Dispute-Resolution 

Policy before the National Arbitration Foundation (Foundation Systems of 

Michigan, Inc. v Patrick McHale / McHale Construction, FA1502001604289), 

McHale’s principal, Patrick McHale, was ordered to transfer the <drymi.com> 

domain name to FSM. 

14. On the very same day that it created <drymi.com>, McHale also 

registered the assumed name “ProDry Engineered Foundation Systems,” which 

misappropriates part of FSM’s prior existing name by including “Foundation 

Systems.” 

15. McHale uses <drymi.com> and the Engineered Foundations Systems 

mark for commercial gain. The website is used exclusively to advertise McHale’s 

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goods and services in Ohio and Michigan. These goods and services relate to 

foundation and crawl space repair, basement waterproofing, and concrete lifting 

and leveling. 

16. The goods and services McHale offers are substantially the same as 

those offered by FSM, and McHale offers these goods and services in the same 

geographic area as FSM. 

17. FSM’s <drymich.com> and McHale’s <drymi.com> websites are 

similar in appearance: both have their logo in the upper left corner of the page and 

both feature predominantly blue and red color schemes. 

18. FSM is the exclusive area distributor of Basement Systems’ 

Waterguard® basement waterproofing system. A picture of this system is featured 

on <drymi.com>. 

19. McHale was put on notice of the confusing similarities between the 

FSM Marks and the marks used by McHale on November 17, 2014, but refuses to 

cease using the marks. 

COUNT I 

(FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF 

ORIGIN UNDER §43(a) OF THE LANHAM ACT) 

20. Plaintiff incorporates and realleges, as if fully set forth in this 

paragraph, the allegations of the foregoing paragraphs. 

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21. The FSM Marks are well established and serves to identify the goods 

and services sponsored, approved by, authorized by, associated with, or affiliated 

exclusively with FSM, which has an exceptional reputation in the industry. 

22. As evidenced by FSM’s long, continued, and exclusive use since 

2012, the FSM Marks have acquired distinctiveness and secondary meaning within 

the market for foundation repairs and waterproofing in FSM’s service area. 

23. Defendant, in connection with foundation repair and waterproofing 

contracting goods and services in Ohio and Michigan, has used and continues to 

use, the DRYMI mark in commerce in a manner which is likely to cause 

confusion, or cause mistake, or to deceive as to the affiliation, connection, or 

association of the Defendant with FSM, and to the origin, sponsorship, or approval 

of Defendant’s goods, services, and/or commercial activities of FSM. 

24. The Defendant’s use of the DRYMI mark constitutes false designation 

of origin, false description, and false representation in interstate commerce in 

violation of §43(a) of the Lanham Act, 15 U.S.C. §1125(a). 

25. Defendant admits to having had actual and constructive knowledge of 

the use and ownership by FSM of the DRY MICH mark and was aware of the 

advertising and promotional activities sponsored by Plaintiff prior to his use of the 

<drymi.com> domain name. 

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26. Defendant, in connection with foundation repair and waterproofing 

contracting goods and services in Ohio and Michigan, has used and continues to 

use the assumed name ProDry Engineered Foundation Systems in a manner which 

is likely to cause confusion, or cause mistake, or to deceive as to the affiliation, 

connection, or association of the Defendant with FSM, and to the origin, 

sponsorship, or approval of Defendant’s goods, services, and/or commercial 

activities of FSM. 

27. The Defendant’s use of the ProDry Engineered Foundation Systems 

mark constitutes false designation of origin, false description, and false 

representation in interstate commerce in violation of §43(a) if the Lanham Act, 15 

U.S.C. §1125(a). 

28. Defendant admits to having had actual and constructive knowledge of 

the use and ownership by FSM of the Foundation Systems of Michigan mark and 

was aware of the advertising and promotional activities sponsored by Plaintiff prior 

to his use the ProDry Engineered Foundation Systems assumed name. 

29. As a proximate result of Defendant’s actions, FSM has suffered and 

will continue to suffer great damage to its business, goodwill, reputation, profits 

and the strength of its trademarks. The injury is and continues to be ongoing and 

irreparable. 

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30. An award of monetary damages alone cannot fully compensate FSM 

for its injuries and FSM lacks an adequate remedy at law. 

COUNT II 

(CYBERPIRACY UNDER §43(d) OF THE LANHAM ACT) 

31. Plaintiff incorporates and realleges, as if fully set forth in this 

paragraph, the allegations of the foregoing paragraphs. 

32. FSM is the owner of the DRY MICH mark. 

33. FSM has used and is using the DRY MICH mark for commercial 

purposes, including without limitation the Internet domain name <drymich.com>. 

34. On information and belief, the defendant McHale is the authorized 

licensee of the domain name <drymi.com>. 

35. The domain name <drymi.com> was confusingly similar to the DRY 

MICH mark at the time of registration. 

36. The DRY MICH mark was distinctive at the time the domain name 

<drymi.com> was registered. 

37. Defendant registered and has subsequently used the domain name 

<drymi.com> with a bad faith intent to profit from the confusingly similar mark 

owned by FSM, without reasonable grounds to believe that the use of the domain 

name was a fair use or otherwise lawful, and with the intent to tarnish the DRY 

MICH mark by creating a likelihood of confusion as to the source, sponsorship, 

affiliation, or endorsement of the site. 

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COUNT III 

(STATE UNFAIR UNCOMPETITION – MICHIGAN COMMON LAW) 

38. Plaintiff incorporates and realleges, as if fully set forth in this 

paragraph, the allegations of the foregoing paragraphs. 

39. By their acts alleged herein, Defendants have engaged in trademark 

infringement and unfair competition under the common law of the State of 

Michigan. 

40. Defendant’s use of the mark DRYMI is confusingly similar to 

Plaintiff’s use of the mark DRY MICH. 

41. Defendant’s use of the mark ProDry Engineered Foundation Systems 

is confusingly similar to Plaintiff’s use of the mark Foundation Systems of 

Michigan. 

42. Defendant has intentionally deceived the public by misrepresenting 

that Defendant’s services being offered are those of FSM’s, thereby appropriating 

to Defendant the reputation FSM has acquired for its own services. 

43. Upon information and belief, the aforesaid acts were undertaken 

willfully and with the intention of causing confusion, mistake or deception. 

44. By reason of the acts of Defendant alleged herein, FSM has suffered, 

is suffering and will continue to suffer irreparable damage and, unless, said 

Defendants are restrained from continuing its wrongful acts, the damage will be 

increased. 

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45. FSM has no adequate remedy at law. 

COUNT IV 

(VIOLATION OF MICHIGAN CONSUMER PROTECTION ACT 

(“MCPA”) 

46. Plaintiff incorporates and realleges, as if fully set forth in this 

paragraph, the allegations of the foregoing paragraphs. 

47. Defendant’s conduct of a business providing goods and services 

primarily for personal, family or household purposes constitutes “trade or 

commerce” within the meaning of 445.902(1)(g) of the Michigan Consumer 

Protection Act (“MCPA”), MCL §445.901, et seq. 

48. Defendant’s conduct, as set forth above, is prohibited by the MCPA. 

(MCL §445.903). Defendant’s unlawful actions include causing confusion or 

misunderstanding as to the source, sponsorship, approval and/or certification of 

goods or services and representing that its goods or services have sponsorship, 

approval and/or certification that they do not have. 

49. Plaintiff has suffered loss and substantial damages as a proximate 

result of Defendant’s actions and is entitled to actual or statutory damages together 

with reasonable attorney fees. 

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PRAYER FOR RELIEF 

WHEREFORE, Plaintiff respectfully requests that this Court: 

A. Enter judgment that Defendant has engaged in unfair competition and 

used false designations of origin, false descriptions, and false 

representations, in bad faith and in willful violation of 15 U.S.C. 

§1125(a), and, with bad faith intent to profit from FSM’s DRY MICH 

mark, has registered, trafficked in, and used, a domain name 

confusingly similar to FSM’s DRY MICH mark in violation of 15 

U.S.C. §1125(d). 

B. Award actual or statutory damages for Defendant’s violation of 15 

U.S.C. §1125(d)(1) in an amount of not less than $1,000.00 and not 

more than $100,000 per domain name, as the court considers just. 

C. Issue a preliminary injunction and thereafter a permanent injunction 

under 15 U.S.C. §1116(a) ordering Defendant and their respective 

officers, agents, servants, employees, and attorneys, and those persons 

in active concert with them, to refrain from using, authorizing or 

employing the name or marks “DRYMI,” or “ProDry Engineered 

Foundation Systems” or any colorable imitation of the FSM Marks, 

and to file with the court and serve on the Plaintiff within thirty (30) 

days of service on Defendant of such injunction a report in writing 

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under oath setting forth in detail the manner and form in which 

Defendant has complied with the injunction. 

D. Issue an order under 15 U.S.C. §1118 ordering that all labels, signs, 

prints, packages, wrappers, receptacles, and advertisements in the 

possession of Defendant bearing the accused marks or colorable 

imitation of the FSM Marks, shall be delivered and destroyed. 

E. Enter declaratory judgment that Defendant’s conduct is unlawful 

under the MCPA, enjoin further unlawful acts, and award all 

damages, including costs and reasonable attorney fees, as authorized 

by that Act. 

F. Award damages to the Plaintiff as provided under 15 U.S.C. §1117(a), 

including the Defendants’ profits, three times the actual damages 

sustained by Plaintiff, and reasonable attorney fees to the Plaintiff as 

prevailing party, or if the court shall find that the amount of recovery 

based on profits is either inadequate or excessive, to award in its 

discretion judgment for such sum as the court shall find to be just, 

according to the circumstances of this case, and the costs of this 

action. 

G. Such other and further relief as this Court deems appropriate. 

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JURY TRIAL DEMAND 

 Pursuant to Fed R. Civ. P. 38(b) and 5(d), Plaintiff demands a jury trial of all 

issues triable by jury. 

Dated: March 23, 2015 CARLSON, GASKEY & OLDS, P.C. 

/s/ Brian B. Brown 

Brian B. Brown (P62733) 

Carlson Gaskey & Olds, P.C. 

400 W. Maple, Suite 350 

Birmingham, Michigan 48009 

 (248) 988-8360 

bbrown@cgolaw.com

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