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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION

BEPS SERVICES, LLC D/B/A §

BLUE ESCAPES POOL & SPA, §

§ Civil Action No.________________

§

Plaintiff, §

§

v. §

§

§

BLUE ESCAPE POOLS LLC AND §

ROGER DAVIS, §

§

§ JURY DEMANDED

Defendants. §

______________________________________________________________________________ 

PLAINTIFF’S ORIGINAL COMPLAINT, 

APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER, AND 

APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTIONS

______________________________________________________________________________

Plaintiff BEPS Services, LLC d/b/a Blue Escapes Pool & Spa (“Blue Escapes” or 

“Plaintiff”), by and through its attorneys, Fox Rothschild LLP, files the following Complaint 

against Defendants Blue Escape Pools LLC, (“Blue Escape”) and Roger Davis, (“Davis”) 

(collectively, “Defendants”), and in support thereof, asserts the following:

JURISDICTION

1. This Court possesses subject matter jurisdiction over this action pursuant to 28 

U.S.C. §§ 1331 and 1338.

2. This Court has supplemental jurisdiction over the state law claims pursuant to 28 

U.S.C. § 1367. This is an action for (1) unfair competition under 15 U.S.C. § 1125(a)(1)(A)

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(Lanham Act § 43(a)(1)(A); (2) false advertising under 15 U.S.C. § 1125(a)(1)(B) (Lanham Act § 

43(a)(1)(B); (3) cybersquatting under 15 U.S.C. § 1125(d) (Lanham Act § 43(d); and (4) related 

causes of action under the laws of the State of Texas.

3. As set forth below, the actions listed above arise, inter alia, out of Defendants’ use 

in commerce of a mark, words and names in connection with goods and services similar and/or 

related to those of Plaintiff, and Defendants’ registration and use of a domain name containing 

Plaintiff’s mark.

PARTIES

4. Plaintiff BEPS Services, LLC d/b/a Blue Escapes Pool & Spa, is a limited liability 

company organized under the laws of the State of Texas.

5. Defendant, Blue Escape Pools LLC, is a limited liability company organized under 

the laws of the State of Texas. Blue Escape has its principal place of business in the State of Texas. 

Blue Escape may be served with process by serving its registered agent, United States Corporation 

Agents, Inc., at 9900 Spectrum Dr., Austin, Texas 78717.

6. Defendant, Roger Davis, is an individual and a citizen of the State of Texas and 

may be served with process at 190 E. Stacy Rd., Suite 306, Allen, Texas 75002, or wherever he 

may be found.

7. Defendants sell, offer, advertise and render the services associated with their

products and services on the Internet, which is accessible throughout the world, including in this 

judicial district and in the State of Texas. 

8. The acts of Defendants giving rise to Plaintiff’s claims have been and continue to 

be committed by Defendants in this judicial district.

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VENUE

9. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) and 

§ 1391(c) because a substantial part of the events or omissions giving rise to Plaintiff’s claims 

occurred and are occurring in this judicial district, and through their residences and/or actions, all 

Defendants are subject to personal jurisdiction in this district.

FACTUAL BACKGROUND

10. Blue Escapes is owned and operated by native Texans, Robert Iovinelli (“Robert”) 

and Willeta Iovinelli (“Willeta”) (collectively, “the Iovinellis”). See Exhibit “A” (Declaration of 

Willeta Iovinelli). Based in Plano, Texas, the Iovinellis have more than 43 years’ experience 

servicing, building, renovating and repairing Dallas, Plano, and Frisco area pools (not to mention 

other parts of the Dallas-Ft. Worth Metroplex). See Id. Robert is one of only a few people in the 

state of Texas who is both a Certified Builder Professional (“CBP”) and a Certified Pool and Spa 

Service Professional (“CSP”). CBP and CSP are two certifications offered by the Pool & Hot Tub 

Alliance (“PHTA”), for pool service and pool builder professionals. See Id. Consequently, Blue 

Escapes is one of just a handful of pool service companies in the greater Dallas-Fort Worth area 

that is specially equipped to resolve complex swimming pool problems. See Id.

11. Blue Escapes has been operating under and using the name “Blue Escapes Pool & 

Spa” in commerce since October 2011. See Id. Blue Escapes has a pending trademark application 

with the United States Patent and Trademark Office (Serial No. 98017005) for the “Blue Escapes 

Pool & Spa” service mark. See Exhibit “B” (Trademark Application). Blue Escapes maintains a 

physical address at 1406 Capital Ave., Suite 108, Plano, Texas 75074, and maintains an internet 

domain at https://blueescapespools.com/ (“Plaintiff’s Blue Escapes Domain”). See Exhibit “A” 

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(Declaration of Willeta Iovinelli). This internet domain leads consumers to Blue Escapes’ website. 

See Exhibit “C” (Blue Escapes website). 

12. Unbeknownst to Blue Escapes, on or about March 17, 2023, Davis formed a 

company called Blue Escape Pools LLC as a limited liability company with the Texas Secretary 

of State, with a physical mailing address at 190 E Stacy Rd. Suite 306, Allen, Texas 75002-8738. 

See Exhibit “D” (Defendant’s Texas SOS Filing).

13. Further unbeknownst to Blue Escapes, and upon information and belief, on or about 

March 24, 2023, Davis registered an internet domain at https://www.blueescapepool.com/

(“Defendants’ Blue Escape Domain”) on Wix.com. See Exhibit “A” (Declaration of Willeta

Iovinelli). This internet domain leads consumers to Defendants’ website. See Exhibit “E” 

(Defendants’ website). 

14. By way of just one example, on or about March 22, 2023, a customer received an 

estimate from Davis, numbered EST05887 (the “March Estimate”), in the amount of $17,650.00 

for a pool renovation project involving a re-plaster with pebble plaster and a pool modification. 

See Exhibit “F” (March Estimate). See also Exhibit “A” (Declaration of Willeta Iovenilli). The

March Estimate contained contact information for “Blue Escape Pools” including a business phone 

number at 469-494-9323, an internet domain at https://www.blueescapepool.com/ (“Defendants’ 

Blue Escape Domain”), and an e-mail at blueescapepools@gmail.com. See Id. Although neither 

Davis nor Blue Escape are affiliated with Blue Escapes, the March Estimate included Plaintiff’s 

business address at 1406 Capital Ave., Plano, Texas—the same physical address maintained by 

Blue Escapes for well over a decade. See Id.

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15. Upon information and belief, on or about March 23, 2023, in an apparent effort to 

gain the customer’s confidence and business, Davis provided the customer with Plaintiff’s Blue 

Escapes Domain rather than Defendants’ Blue Escape Domain that was listed on the March 

Estimate—specifically directing the customer to view “info on the [Iovinellis] and all of our

license and certifications.” See Exhibit “G” (03.23.2023 Davis Text) (emphasis added). Upon 

information and belief, despite providing Plaintiff’s Blue Escapes Domain, Davis represented to 

the customer that he was “an independent sales rep/project manager for the company.” See Id.

16. Upon information and belief, on or about March 27, 2023, capitalizing on Plaintiff’s

valuable goodwill and strong reputation, Davis required from this same customer an onerous 

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payment schedule with a substantial fifty percent down payment prior to even starting the job. See 

Exhibit “H” (03.27.2023 Davis Text).

17. Based on the above experiences with Davis, and after having Plaintiff clarify the 

situation, this customer submitted a Yelp review which outlined in detail the manner in which 

Davis went about passing off the Plaintiff’s business mark as his own, and in the process creating 

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confusion as to whom this customer was initially communicating with. See Exhibit “I” (Davis Yelp 

review).

18. By way of a further example, another customer who was mislead by Defendants 

into thinking she was dealing with the Plaintiff’s business, had contacted Plaintiff about this 

confusion. See Exhibit “J” (Broadly communications with customer). Again, Plaintiff had to 

clarify with this customer that they were in no way affiliated with the Defendants.

19. On June 14, 2023, Blue Escapes sent Davis a cease and desist letter (“1st C&D 

Letter”). See Exhibit “K” (06.14.2023 C&D Letter). The 1st C&D Letter was sent via certified 

mail to Defendant Blue Escape’s mailing address at 190 E. Stacy Rd., Suite 306, Allen, Texas 

75002 and via e-mail at blueescapepools@gmail.com. See Id. However, Davis did not respond to 

the 1st C&D Letter.

20. Further unbeknownst to Blue Escapes, on or about April 18, 2023, Davis provided 

an estimate to another customer in Wylie, Texas, numbered EST05895 (the “April Estimate”), in 

the amount of $53,000.00 for a pool construction project of an inground gunite pool. See Exhibit 

“L” (April Estimate). Upon information and belief, Davis brought in a contractor, LG Plumbing 

(“LG”), to perform certain services for the April Estimate because Defendants lacked such 

capabilities. See Id. See also Exhibit “A” (Declaration of Willeta Iovenilli). Defendant Davis 

represented to the contractor that he was affiliated with Plaintiff’s Blue Escapes. See Id. However, 

upon information and belief, Defendants issued a fraudulent check payment to LG on July 21, 

2023, in the amount of $9,000.00, which was returned by the bank on July 26, 2023, due to 

insufficient funds. See Exhibit “M” (07.21.2023 Hot Check to Contractor). See also Exhibit “A” 

(Declaration of Willeta Iovenilli). Regarding the name of the payor on the check (which was not 

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in the name of either Defendant), Davis represented to the contractor that it was “a partner of his”. 

See Id. 

21. Defendants’ actions were only brought to Blue Escapes attention after the 

contractor mistakenly contacted Blue Escapes, seeking payment that was owed by Defendants. See 

Id. Consequently, Blue Escapes sent Davis a second cease and desist letter (“2d C&D Letter”) on 

August 23, 2023 and reattached the 1st C&D Letter. See Exhibit “N” (08.23.2023 C&D Letter). 

Davis acknowledged receipt on August 23, 2023. On August, 23, 2023, in response to the 2d C&D 

Letter, Davis stated his unequivocal intent to “continue and use Blue Escape Pools LLC” and that 

“the state of Texas recognizes [him] as the owner of Blue Escape Pools. See Exhibit “O”

(08.23.2023 Davis e-mails). Despite the foregoing, Davis boldly responded to counsel from 

blueescapepools@gmail.com when he represented that he is “not trying to impersonate or deceive 

anyone into believing [he has] any association with Blue Escapes Pool and Spa.” See Id. However, 

Davis expressed his willingness to sell the name, Blue Escape Pools LLC, but if Plaintiff “have a 

problem with [Davis] owning the company they can buy it or contact the Secretary of State who 

approved [Davis] to own the name.” See Id. Of course, the Secretary of State does not clear names 

for trademark use, and corporate name availability has nothing to do with the ability to use a certain 

name as a trademark beamed out to the public. Davis clearly knew that he had registered his LLC 

with a name that the Plaintiff has been using for over a decade – in the same geographic area and 

for the same pool-related services1. 

22. As of the date of this filing, Defendants are using a nearly identical domain name 

as that of Blue Escapes. See Exhibit “A” (Declaration of Willeta Iovenilli). As a result, Blue 

1 Defendants purport to engage in pool construction and remodeling services in the Dallas area. 

See Exhibit “E” (Defendants’ website). Plaintiff also provides similar pool services in the same 

Dallas area. See Exhibit “C” (Blue Escapes website). 

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Escapes has already suffered money damages through this redirection of revenue that rightfully 

belongs to Blue Escapes. See Id. Blue Escapes currently owns https://blueescapespools.com/ that 

it created. See Id. However, https://www.blueescapepool.com/ that Defendants operate under was

chosen by Defendants to obtain the benefit of Plaintiff’s decades-long efforts to develop valuable 

goodwill and a strong reputation in the greater Dallas-Fort Worth area for servicing, building, 

renovating and repairing pools. See Id. This is no coincidence. Defendants knew of Plaintiff’s

reputation in the Dallas area—even directing consumers to Plaintiff’s website and physical 

address. See Id. 

23. The aforementioned actions of Defendants are just the tip of the iceberg, and the 

snowball effect inherent in this type of misappropriation will cause irreparable damage to 

Plaintiff’s business if Defendants are not immediately restrained from their actions and called upon 

to redress the wrongs inflicted on Blue Escapes. See Id. 

CLAIMS AND CAUSES OF ACTION

COUNT I

Trademark Infringement and False Designation of Origin (15 U.S.C. § 1125(a)(1)(A)

24. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 23

above.

25. Defendants’ use in commerce of “Blue Escapes” as well as the 

https://www.blueescapepool.com/ domain name it misappropriated constitutes use of a false 

designation of origin in interstate commerce, which wrongfully and falsely designates, describes 

or represents the origin of Defendants’ goods and services, and is likely to cause confusion, cause 

mistake and to deceive as to Defendants’ affiliation, connection, or association with Blue Escapes, 

and/or as to the origin, sponsorship, or approval of Defendants’ goods and services by Blue 

Escapes. 

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26. Defendants’ actions have been willful and intentional, as evidence by both their precease and desist as well as their post-cease and desist actions and communications. 

27. Defendants’ wrongful activities have been and will continue to cause irreparable 

damage to Blue Escapes, its business reputation and the goodwill associated with its marks unless 

such activities are enjoined by this Court.

28. Moreover, Blue Escapes has no adequate remedy at law. 

29. The Court should accordingly determine that Defendants have engaged in 

trademark infringement by using Plaintiff’s mark in commerce.

COUNT II

False Advertising (15 U.S.C. § 1125(a)(1)(B)

30. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 29

above.

31. Defendants’ unauthorized sales or attempted sales of services under Plaintiff’s 

mark to unsuspecting consumers constitutes false advertising, which is a violation of Section 

43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). 

32. Defendants have used a word, term, name, symbol or device, or any combination 

thereof, or a false designation of origin, false or misleading description of fact or false or 

misleading representation of fact which, in commercial advertising or promotion, misrepresents 

the nature, characteristics, qualities or geographic origin of Defendants’ services.

33. Defendants advertised, marketed, or promoted its services to the public and/or to 

specific segments of the public, using Plaintiff’s mark.

34. Defendants’ conduct has deceived, and is likely to continue to deceive, a material 

segment of the consumers to whom Defendants have directed their marketing activities. 

Defendants’ false and/or misleading statements are material in that they are likely to influence 

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consumers to purchase services from Defendants and cause competitive and other commercial 

injuries to Blue Escapes. 

35. Defendants have made, and continues to make, its false and/or misleading 

statements with the intent to cause confusion and mistake, or to deceive the public as to the nature, 

quality, or characteristics of the Defendants’ commercial activities. Blue Escapes has been 

damaged as a result.

36. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

37. Defendants’ wrongful activities have been and will continue to cause irreparable 

damage to Blue Escapes, its business reputation and the goodwill associated with its marks unless 

such activities are enjoined by this Court.

38. Moreover, Blue Escapes has no adequate remedy at law. 

39. The Court should accordingly determine that Defendants have engaged in 

trademark infringement by using Plaintiff’s marks in commerce.

COUNT III

Common Law Trademark Infringement

40. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 39 

above. 

41. Defendants’ use in commerce of “Blue Escapes” as well as the 

https://www.blueescapepool.com/ domain name it misappropriated constitutes an infringement of 

Plaintiff’s common law rights in its mark. 

42. Plaintiff’s common law rights in its mark is superior to any rights that Defendants 

may claim in their use of designations.

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43. Defendants have used, and continue to use, Plaintiff’s mark in Texas and 

throughout the United States.

44. Said use is likely to cause confusion as to the source of Defendants’ goods and 

services in that purchasers and prospective purchasers thereof will likely associate or have 

associated such goods and services with or as originating from Blue Escapes, all to the detriment 

of Blue Escapes. 

45. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

46. Defendants’ conduct has caused, and continues to cause, irreparable injury to Blue 

Escapes and, unless enjoined by this Court, will continue both to damage Blue Escapes and to 

deceive the public.

47. Moreover, Blue Escapes has no adequate remedy at law.

48. The Court should accordingly determine that Defendants have engaged in 

trademark infringement by using Plaintiff’s mark in commerce.

COUNT IV

Common Law Unfair Competition

49. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 48

above. 

50. Defendants’ use in commerce of “Blue Escapes” as well as the 

https://www.blueescapepool.com/ domain name it misappropriated constitutes unfair competition, 

as Defendants’ actions are contrary to honest practice in industrial or commercial matters.

51. Defendants’ unfair competition is likely to cause confusion as to the source of 

Defendants’ goods and services in that purchasers and prospective purchasers thereof will likely 

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associate or have associated such goods and services with or as originating from Blue Escapes, all 

to the detriment of Blue Escapes. 

52. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

53. Defendants’ conduct has caused, and continues to cause, irreparable injury to Blue 

Escapes and, unless enjoined by this Court, will continue both to damage Blue Escapes and to 

deceive the public.

54. Moreover, Blue Escapes has no adequate remedy at law.

55. The Court should accordingly determine that Defendants have engaged in 

trademark infringement by using Plaintiff’s mark in commerce.

COUNT V

Common Law Unfair Competition by Misappropriation

56. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 55

above. 

57. Defendants’ use in commerce of the mark and domain name it misappropriated 

constitutes unfair competition by misappropriation in violation of the common law of the State of 

Texas and elsewhere.

58. Plaintiff’s mark and services were created through Plaintiff’s extensive time, labor, 

skill, and money.

59. Defendants’ use of the mark in their sales and offers for services creates 

competition with Blue Escapes, thereby conferring Defendants with a special advantage in that 

competition because Defendants are burdened with little or none of the expense incurred by Blue 

Escapes.

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60. Defendants’ unfair competition by misappropriation is likely to cause confusion as 

to the source of Defendants’ goods and services in that purchasers and prospective purchasers 

thereof will likely associate or have associated such goods and services with or as originating from 

Blue Escapes, all to the detriment of Blue Escapes. 

61. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

62. Defendants’ conduct has caused, and continues to cause, irreparable injury to Blue 

Escapes and, unless enjoined by this Court, will continue both to damage Blue Escapes and to 

deceive the public.

63. Moreover, Blue Escapes has no adequate remedy at law.

64. The Court should accordingly determine that Defendants have engaged in 

trademark infringement by using Plaintiff’s mark in commerce.

COUNT VI

Federal Cybersquatting (15 U.S.C. § 1125(d))

65. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 64

above.

66. Defendants’ conduct, as set forth fully above, constitutes “cybersquatting” under 

the Anti-Cybersquatting Consumer Protection Act. 

67. Defendants used, registered, and/or trafficked in a domain name belonging to Blue 

Escapes with a bad faith intent to profit from Plaintiff’s mark. 

68. Plaintiff’s mark was distinctive at the time of its use, and the Defendants’ use of 

same is confusingly similar to the Plaintiff’s mark. Further, Defendants’ actions have been willful 

and intentional, as evidence by both their pre-cease and desist as well as their post-cease and desist 

actions and communications. 

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69. Defendants’ wrongful activities have caused irreparable damage to Blue Escapes

and will continue to do so unless such activities are enjoined by this Court.

70. Moreover, Blue Escapes has no adequate remedy at law. 

71. The Court should accordingly determine that Defendants have engaged in 

cybersquatting by using Plaintiff’s domain name.

COUNT VII

Unfair Competition under Section 17.46(a) of the Texas Business and Commerce Code

72. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 71

above.

73. Defendants have used, and are continuing to use, Plaintiff’s mark and domain name 

in commerce in Texas. 

74. Defendants’ actions set forth above constitute false, misleading, or deceptive acts 

or practices including, but not limited to, (1) passing off Defendants’ goods or services as those of 

Plaintiff’s; (2) causing confusion or misunderstanding as to the source of its goods and services, 

sponsorship, approval, or certification of its goods or services; and/or (3) causing confusion or 

misunderstanding as to affiliation, connection, or association with, or certification by, Blue 

Escapes.

75. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

76. Defendants’ wrongful activities have been and will continue to cause irreparable 

damage to Blue Escapes, its business reputation and the goodwill associated with its mark unless 

such activities are enjoined by this Court.

77. Moreover, Blue Escapes has no adequate remedy at law. 

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78. The Court should accordingly determine that Defendants have engaged in unfair 

competition by using Plaintiff’s mark in commerce.

COUNT VIII

Tortious Interference with Existing Contracts

79. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 78

above.

80. Blue Escapes has established business relationships with various customers, of 

which Defendants were acutely aware by virtue of contacting and engaging Plaintiff’s contractors. 

81. On information and belief, Defendants willfully and intentionally interfered with

existing business relationships with both Plaintiff’s contractors and customers.

82. Defendants’ interference with these business relationships proximately caused 

injury to Blue Escapes, which is comprised of actual economic damages in the form of lost benefits 

of the bargain, lost profits, as well as Defendants’ profits.

83. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

84. Defendants’ wrongful activities have been and will continue to cause irreparable 

damage to Blue Escapes. 

85. Moreover, Blue Escapes has no adequate remedy at law. 

86. Because Defendants’ tortious interference was intentional and malicious, Blue 

Escapes is entitled to exemplary and actual damages.

COUNT IX

Tortious Interference with Prospective Business Relations

87. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 86

above.

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88. There was a reasonable probability that Blue Escapes would have entered into 

certain business relationships with third parties.

89. Defendants’ intentionally interfered with these relationships, and this interference 

was independently tortious or unlawful.

90. Defendants’ interference with these business relationships proximately caused 

injury to Blue Escapes, which is comprised of actual economic damages in the form of lost benefits 

of the bargain, lost profits, as well as Defendants’ profits.

91. Defendants’ actions have been willful and intentional, as evidence by both their 

pre-cease and desist as well as their post-cease and desist actions and communications. 

92. Defendants’ wrongful activities have been and will continue to cause irreparable 

damage to Blue Escapes. 

93. Moreover, Blue Escapes has no adequate remedy at law. 

94. Because Defendants’ tortious interference was intentional and malicious, Blue 

Escapes is entitled to exemplary and actual damages.

COUNT X

Unjust Enrichment

95. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 94

above. 

96. By providing services under Plaintiff’s valuable trademark, Defendants have been 

unjustly enriched to Plaintiff’s detriment in violation of the common law of the State of Texas and 

elsewhere.

97. Under principles of equity, Blue Escapes is entitled to damages, restitution, and/or 

disgorgement of Defendants’ ill-gotten gains. 

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98. Plaintiff is entitled to, among other things, an order enjoining and restraining 

Defendants from using Plaintiff’s mark, as well as to Defendants’ profits, Plaintiff’s reasonable 

attorney’s fees and any other remedies provided for under law. 

COUNT XI

Application for Temporary Restraining Order

99. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 98

above.

100. Blue Escapeslikely will suffer imminent harm and irreparable injury if Defendants 

are not immediately restrained from using Plaintiff’s trademarks, and domain name. Fed. R. Civ. 

P. 65(b)(1). See Exhibit “A” (Declaration of Willeta Iovenilli).

101. There is no dispute that Defendants intend to engage in the very activity that 

Plaintiff seeks to enjoin. Specifically, Defendants are currently using a nearly identical domain 

name to that of the Plaintiff. See Id. Further, the web content associated with this misappropriated 

domain utilizes the Plaintiff’s mark and offers substantially similar services as that offered by 

Plaintiff. See Id. Therefore, there is no conjecture involved in satisfying the imminent harm 

requirement. 

102. An irreparable injury is one that cannot be prevented or fully rectified by a final 

judgment following a trial. See Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 

(5th Cir. 1981) (irreparable injury is harm that cannot be undone by an award of monetary 

damages). At this time, Plaintiff’s damages are not ascertainable or easily calculated. See Id. 

Defendants currently operate, and have communicated their intention to continue operating, 

Defendants’ Blue Escape Domain and associated content which infringes on Plaintiff’s mark, and 

are utilizing this domain and associated web content on a daily basis that can have a devastating 

effect on Plaintiff’s business. See Id. This damage includes not only lost profits, but also lost

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goodwill and reputation. See Id. Damage to goodwill and reputation are precisely the type of 

damages that cannot be quantified by a mere dollar figure. See Id. Therefore, there is no adequate 

remedy at law because a money judgment would come well after the aforementioned damage has 

been done. See Id.

103. There is a substantial likelihood that Plaintiff will prevail on the merits because the 

Defendants’ actions are documented, and the actionable behavior can be traced with minimal 

effort. See Bluefield Water Ass’n v. City of Starkville, 577 F.3d 250-252-53 (5th Cir. 2009). It is 

not necessary for the applicant to prove it will ultimately prevail. Walling v. Metcalfe, 863 S.W.2d 

56, 57 (Tex. 1993). 

104. The threatened harm to Plaintiff outweighs the harm that a temporary restraining 

order would inflict on Defendants. Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 

297 (5th Cir. 2012). See Id. A balancing of hardships reveals that it is the Plaintiff who will 

ultimately suffer if Defendants are permitted to continue their damaging efforts. See Id. Any harm 

resulting to Defendants would be the prevention of unjust enrichment through their unlawful 

actions. See Id. Given Plaintiff’s likelihood of success on its claims, the threatened harm to 

Plaintiff outweighs the harm that would befall the Defendants. See Id. 

105. Issuing a temporary restraining order would not adversely affect the public interest 

and public policy. Mississippi Power & Light Co., et al v. United Gas Pipe Line Co, 760 F.2d 

618, 623 (5th Cir. 1985). Should this Court grant the injunctive relief requested, it would affect 

only the parties to this lawsuit. See Id. To the extent that the prospective customer is an affected 

nonparty, the customer is isolated in the marketplace and does not represent the public interest as 

a whole. See Id. For the same reason, enjoining Defendants’ actions does not run counter to public 

policy. See Id. 

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106. Plaintiff is willing to post bond in an amount the Court deems appropriate. See Id.

107. Plaintiff also asks the Court to set the request for a preliminary injunction for 

hearing at the earliest possible date.

108. For these reasons, Plaintiff asks the Court to issue a temporary restraining order 

preventing Defendants from (a) directly or indirectly using, in whole or in part, or in any form, 

Plaintiff’s mark, or any other mark, word or name similar to Plaintiff’s mark likely to cause 

confusion, mistake or to deceive, including any domain name incorporating Plaintiff’s mark or a 

confusingly similar name; (b) making any false or misleading designation or representation of 

origin, any false advertisement, and/or engaging in any unfair methods of competition and/or 

unfair and/or deceptive acts or practices that may or are likely to cause the actual or potential 

customers of Blue Escapes and/or Defendants and/or the public in general to believe that 

Defendants, and/or their products, services or business, are in any way associated, affiliated, or 

connected with, or sponsored by, Blue Escapes, or otherwise falsely designating or representing 

the source, origin, sponsorship, connection, or affiliation of Defendants, and/or Defendants’ 

activities or business of Defendants, vis-à-vis Blue Escapes; (c) unfairly competing with Blue 

Escapes; and (d) contacting any customers that Defendants know to be preexisting customers of 

the Plaintiff. 

COUNT XII

Application for Preliminary Injunction

109. Blue Escapes incorporates by reference the allegations in paragraphs 1 through 108

above.

110. Plaintiff asks the Court to set its application for preliminary injunction for a hearing 

and, after the hearing, issue a preliminary injunction against Defendants for the reasons articulated 

in this Complaint. 

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COUNT XIII

Request for Permanent Injunction

111. Blue Escapes incorporates by reference the allegations in paragraphs 1 through

110 above.

112. Blue Escapes asks the Court to set its application for injunctive relief for a full 

trial on the issues in this application and, after the trial, to issue a permanent injunction against 

Defendants.

DEMAND FOR JURY TRIAL

113. Blue Escapes demands a trial by jury of all triable claims. 

RELIEF REQUESTED

WHEREFORE, Blue Escapes respectfully requests that: 

(1) The Court find and enter Judgment against Defendants on each of Plaintiff’s Claims 

for Relief, Counts I through XIII.

(2) The Court enjoin and restrain Defendants, their officers, directors, agents, servants, 

employees, attorneys, affiliates, successors, assigns, and all persons acting for, with, by, through 

or under them, from:

(a) directly or indirectly using, in whole or in part, or in any form, Plaintiff’s 

mark, or any other mark, word or name similar to Plaintiff’s mark likely to 

cause confusion, mistake or to deceive, including any domain name 

incorporating Plaintiff’s mark or a confusingly similar name; 

(b) making any false or misleading designation or representation of origin, any 

false advertisement, and/or engaging in any unfair methods of competition 

and/or unfair and/or deceptive acts or practices that may or are likely to 

cause the actual or potential customers of Blue Escapes and/or Defendants 

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150740451.2

and/or the public in general to believe that Defendants, and/or their 

products, services or business, are in any way associated, affiliated, or 

connected with, or sponsored by, Blue Escapes, or otherwise falsely 

designating or representing the source, origin, sponsorship, connection, or 

affiliation of Defendants, and/or Defendants’ activities or business of 

Defendants, vis-à-vis Blue Escapes; 

(c) unfairly competing with Blue Escapes; and

(d) contacting any customers that Defendants know to be preexisting customers 

of the Plaintiff. 

 (3) The Court require Defendants to account for and pay over to Blue Escapes all gains,

profits and advantages derived by them from the activities complained of herein.

(4) The Court award Blue Escapes its actual damages caused by Defendants’ acts 

complained of herein. 

(5) The Court award Blue Escapes treble the amount of actual damages suffered by 

Blue Escapes.

(6) The Court award Blue Escapes compensatory damages in an amount to be proven 

at trial, for which Defendants shall be liable.

(7) The Court award Blue Escapes statutory damages, should same be elected pursuant 

to the Lanham Act, in an amount of not less than $1,000 and not more than $100,000 per domain 

name, as the court considers just.

(8) The Court award Blue Escapes its costs in this civil action.

(9) The Court award Blue Escapes its reasonable attorneys’ fees. 

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(10) The Court Order that Defendants transfer to Blue Escapes the domain names at 

issue. 

(11) The Court award such other and further relief as the Court may deem just and 

equitable.

Respectfully submitted,

/s/ Andy Nikolopoulos_______________

Andy Nikolopoulos, Esq.

Texas Bar No. 24044852

anikolopoulos@foxrothschild.com 

John Guerrero (Admission Forthcoming)

Texas Bar No. 24133040

jguerrero@foxrothschild.com

FOX ROTHSCHILD LLP

2501 N. Harwood St., Suite 1800

Dallas, TX 75201

(t) 972.991.0889

(f) 972.404.0516 

Attorneys for Plaintiff BEPS Services, LLC 

d/b/a Blue Escapes Pool & Spa

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