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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

____________________________________

)

MEDTECH PRODUCTS INC., )

)

Plaintiff, )

)

v. )

)

RANIR, LLC and )

CVS PHARMACY, INC. )

)

Defendant. )

____________________________________)

)

MEDTECH PRODUCTS INC., )

90 North Broadway ) 07 CV 3302 (KMK) (LMS)

Irvington, New York 10533 )

) JURY DEMAND

Plaintiff, )

) SECOND AMENDED COMPLAINT

v. ) FOR INJUNCTIVE RELIEF AND

) MONEY DAMAGES

DENTEK ORAL CARE, INC., )

307 Excellence Way )

Maryville, Tennessee 37801 )

)

KELLY M. KAPLAN, )

4 Woodmont Road )

Upper Montclair, NJ 07043 )

)

RAY DUANE, )

7741 Broadwing Drive )

North Las Vegas, NV 89084-2432 )

)

C.D.S. ASSOCIATES, INC., )

2441 East Rockledge Road )

Phoenix, AZ 85048-4308 )

)

Defendants. )

____________________________________)

MEDTECH PRODUCTS INC., )

)

Plaintiff, )

Case 7:07-cv-03302-KMK-LMS Document 66 Filed 10/04/2007 Page 1 of 68
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)

v. )

)

POWER PRODUCTS, INC., )

d/b/a/ SPLINTEK, )

)

Defendant. )

____________________________________)

For its Second Amended Complaint for Injunctive Relief and Money Damages against

Defendants DENTEK ORAL CARE, INC. (“DenTek”), KELLY M. KAPLAN (“Kaplan”), RAY

DUANE (“Duane”), and C.D.S. ASSOCIATES, INC. (“CDS”) (collectively, the “Defendants”),

Plaintiff MEDTECH PRODUCTS INC. (“Medtech”) states and alleges as follows:

INTRODUCTION

1. Medtech markets, distributes, and sells an over-the-counter (“OTC”) bruxism

device or dental protector designed to protect the teeth and jaw from the detrimental effects of

teeth grinding under Medtech’s trademarks THE DOCTOR’S® NIGHTGUARDTM. Medtech

markets, distributes, and sells dental protectors throughout the United States and in the New

York area.

2. The product at issue is Medtech’s patented dental protector designed to protect the

teeth and jaw from the detrimental effects of bruxism (teeth grinding), a product which is sold

under the trademarks THE DOCTOR’S® NIGHTGUARDTM, and that nationally generates more

than ten million dollars in annual sales for Medtech.

3. Medtech’s THE DOCTOR’S® NIGHTGUARDTM brand dental protector is

covered by valid patents issued by the U.S. Patent and Trademark Office. THE DOCTOR’S®

NIGHTGUARDTM is a high-quality product that has both distinct advantages to the consumer

and a distinctive feel. THE DOCTOR’S® NIGHTGUARDTM product therefore offers superior

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protection and comfort—characteristics that consumers of dental protectors have come to expect

from Medtech’s product.

4. Medtech initially brought this action on April 24, 2007, alleging that DenTek had

launched a coordinated campaign of unfair competition to deceptively lure consumers into

purchasing DenTek’s dental protector product in the mistaken belief that it is, or comes from,

Medtech, the maker of the market-leading and well-advertised THE DOCTOR’S®

NIGHTGUARDTM dental protectors.

5. At the time the Complaint was filed, Medtech knew that (a) DenTek

misappropriated the NIGHTGUARDTM trademark and trade dress; (b) DenTek misappropriated

the NIGHTGUARDTM patented invention; and (c) DenTek had copied Medtech’s “At-Home

Fitting Instructions” for the NIGHTGUARDTM dental protector.

6. As of April 24, 2007, DenTek’s dental protector product had been on the market

since approximately mid-March 2007. The Complaint alleged an action for willful infringement

of a duly and legally issued patent; unfair competition in violation of the Lanham Act by use of

false designation of origin in interstate commerce and violation of common law trademark rights;

violation of New York’s Consumer Protection Act; and copyright infringement.

7. Defendants Duane and Kaplan were the Vice President of Sales and Vice

President of Marketing, respectfully, of Dental Concepts LLC (“Dental Concepts”), Medtech’s

predecessor in interest. Duane and Kaplan also both worked after the acquisition of Dental

Concepts as consultants to Medtech.

8. Duane, immediately thereafter, and Kaplan, soon thereafter, then assisted DenTek

in bringing its infringing product to the market in seven months by divulging Medtech’s

confidential and proprietary information and material to DenTek. In or around late-May 2007,

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Medtech discovered that Kaplan was working for DenTek and immediately filed a Motion to

Amend its Complaint to allege that the similarities of the THE DOCTOR’S® NIGHTGUARDTM

dental protector and the DenTek dental protector products resulted from the misuse of Medtech’s

confidential and proprietary information given to DenTek. In late-June 2007, Medtech

discovered that Duane was also associated with DenTek.

9. As executives for Dental Concepts/Medtech, Duane and Kaplan had substantial

access to confidential and proprietary information and material relating to THE DOCTOR’S®

NIGHTGUARDTM product. Duane’s and Kaplan’s actions in divulging such information to

DenTek violate their valid contracts with Medtech.

10. DenTek’s OTC bruxism device is made using the patented technology embodied

in THE DOCTOR’S® NIGHTGUARDTM dental protector; it relies on a manufacturer identified

and used by Dental Concepts; Dental Concepts’ dental and other consultants assisted DenTek in

bringing the product to market; Dental Concepts’ legal and regulatory advisors were identified,

approached and, in some cases, retained to assist DenTek in bringing the competitive product to

market; DenTek is using Medtech’s trademark to market the product; and DenTek is relying on

Medtech’s copyrighted material.

11. All of DenTek’s efforts to develop and market the DenTek OTC bruxism device

are attributable to Duane’s and Kaplan’s previous association with Dental Concepts. Moreover,

DenTek’s one-size-fits-all product’s marketplace entry was made possible by Duane’s and

Kaplan’s knowledge of Medtech’s proprietary strategy to maintain its three-size platform.

DenTek used Medtech’s inside information to take advantage of a market opportunity.

12. The confidential and proprietary information of Duane and Kaplan, learned as a

result of their association with Dental Concepts, permitted the DenTek product to truncate the

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normal product development timeline. By utilizing Medtech’s confidential and proprietary

information, DenTek was able to establish itself with a major retailer to ensure a quick

competitive entry into the marketplace that would pay handsome long-term dividends.

PARTIES, JURISDICTION & VENUE

13. Medtech is a corporation organized and existing under the laws of Delaware, with

its principal place of business at 90 North Broadway, Irvington, New York 10533.

14. DenTek is a corporation organized and existing under the laws of Tennessee, with

its principal place of business at 307 Excellence Way, Maryville, Tennessee 37801.

15. Kaplan is an individual residing at 4 Woodmont Road, Upper Montclair, New

Jersey 07043.

16. Duane is an individual residing at 7741 Broadwing Drive, North Las Vegas, NV

89084-2432.

17. CDS is a corporation organized and existing under the laws of the State of

Arizona, with a principal place of business at 3236 East Chandler Blvd., Suite # 1041, Phoenix,

AZ 85048.

18. This Complaint arises under 15 U.S.C. §§ 1116-18 and 1125(a); 17 U.S.C. § 101

et seq.; 35 U.S.C. § 271; and the laws of the State of New York.

19. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331, 1338(a) and (b), and 15 U.S.C. § 1121. This Court also has subject matter

jurisdiction over this claim under 28 U.S.C. § 1332(a)(1). There is complete diversity of

citizenship between the parties: Medtech is a Delaware corporation with a principal place of

business in New York; DenTek is a Tennessee corporation with a principal place of business in

Tennessee; Kaplan is an individual residing in New Jersey; Duane is an individual residing in

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Nevada; and CDS is a New Jersey corporation with a principal place of business in Arizona. The

damages alleged exceed the jurisdictional amount exclusive of costs and interest. Moreover, this

Court has supplemental and pendent jurisdiction under 28 U.S.C. § 1367 because the state and

federal claims are derived from a common nucleus of operative facts and considerations of

judicial economy dictate that the state and federal issues be consolidated for a single trial.

20. DenTek, Kaplan, Duane and CDS are subject to personal jurisdiction in this

Court.

21. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b). Venue is also

proper pursuant to 28 U.S.C. § 1391(c) because DenTek is subject to personal jurisdiction in this

District under New York law.

FACTS COMMON TO ALL COUNTS

22. Medtech and its predecessor in interest, Dental Concepts LLC (“Dental

Concepts”), pioneered sales of OTC dental protectors and have been selling THE DOCTOR’S®

NIGHTGUARDTM brand dental protector for more than ten years. Until recently, Medtech was

the only lawful source of any such product in the over-the-counter market.

23. Dental Concepts began using the NIGHTGUARDTM mark in association with the

marketing, distribution, and sale of dental protectors on or about January 1997. As such,

Medtech (as the successor in interest to Dental Concepts) created the entire category of OTC

dental bruxism protectors, revolutionizing at-home consumer care for bruxism or nighttime tooth

grinding.

I. BACKGROUND OF DENTAL CONCEPTS LLC: BUILDING DENTAL

CONCEPTS FOR SALE TO A STRATEGIC ACQUIRER.

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24. Mr. Michael Lesser (“Mr. Lesser”), along with Hamilton Investment Partners,

LLC (“Hamilton”), a private investment firm that makes equity and subordinated debt

investments in partnership with management teams, acquired Dental Concepts from Dr. Gene

Wagner and Peter Strauss in 1999. Mr. Lesser became the president and Chief Executive Officer

(“CEO”) of Dental Concepts.

25. In 1999 Dental Concepts had a mix of oral care products designed and marketed

to offer consumers at-home and affordable self care to maintain oral health. The stable of

products included ORAPIK®Interdental Pick, the largest product in terms of gross sales. It also

included THE DOCTOR’S BRUSHPICKS®, THE DOCTOR’S®Traveler Plaque and Tartar

Remover, THE DOCTOR’S®Tooth-Stain Remover/Polisher, and THE DOCTOR’S®

NIGHTGUARDTM.

26. In 1998 and early 1999, the NIGHTGUARDTM brand dental protector only

accounted for approximately 14% of the gross annual sales of Dental Concepts. The

NIGHTGUARDTM brand dental protector had a distribution consisting of less than a thousand

CVS stores, less than a thousand Walgreen stores, and Giant stores, headquartered in Landover,

Maryland. Gross sales of the NIGHTGUARDTM brand dental protector for 1998 were $226,483

and for 1999 were $686,000.

A. MR. LESSER RECRUITS DUANE AND KAPLAN TO BE MEMBERS OF THE CORE

MANAGEMENT TEAM OF DENTAL CONCEPTS.

27. In July 1999, Mr. Lesser began building his core management team. One of Mr.

Lesser’s first steps as CEO was to solicit Duane to serve as Vice President of Sales of Dental

Concepts. Duane was an executive sales consultant who was a long-time friend of Mr. Lesser.

More importantly, Duane was a “difference” maker that Mr. Lesser considered to be a critical

hire for the management to grow Dental Concepts going forward.

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28. In the same way, Mr. Lesser recruited Kelly Kaplan, who was then working for a

pharmaceutical company. Mr. Lesser considered Kaplan to be an ideal hire. She eventually

became Vice President of Marketing.

29. Neither Duane nor Kaplan had any business experience with bruxism devices

prior to their employment with Dental Concepts.

30. From the beginning, Mr. Lesser and the other members of the management team

at Dental Concepts had a clearly defined strategic goal to which they focused their energies:

rapidly build the value of the company and sell it to a strategic acquirer within three to five

years. Mr. Lesser clearly and consistently communicated this strategic goal to Duane and

Kaplan, as well as the other members of senior management, throughout the time they were

associated with, or employed by, Dental Concepts.

B. CDS AND RAY DUANE’S CONSULTING AGREEMENT, INCLUDING THE

COVENANT NOT TO COMPETE AND NON-SOLICITATION AGREEMENT.

31. CDS’s and Duane’s Consulting Agreement was dated September 30, 1999. A

copy of Duane’s Consulting Agreement is attached hereto as Exhibit A (under seal).

32. The Consulting Agreement provides that CDS’s “services” shall be provided

“through Duane, the President of [CDS].” (Ex. A at p. 1.) These “services” were to “direct and

supervise the sales of [Dental Concepts’] products, subject to and under supervision of [Dental

Concepts’] President and its Board of Managers.” (Id. ¶ 2(a).) Duane was required “to devote

his entire business time, energy and skill to such activities on behalf of [Dental Concepts].” (Id.

at p. 1, ¶ 2(b).)

33. To protect Dental Concepts’ trade secrets and confidential information, and

because Duane agreed that those interests were deserving of protection, Duane agreed that for a

period of twenty-four (24) months after termination of his employment he would be bound by a

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non-compete agreement and non-solicitation agreement. (Ex. A at pp. 5-6, ¶ 7) (hereinafter the

“Covenant Not to Compete and Non-Solicitation Agreement”).

34. The text of the Consulting Agreement’s Covenant Not to Compete and NonSolicitation Agreement provides:

(b) The Consultant [CDS] and Duane agree that, commencing as of the date

hereof and during the period of the Consultant’s engagement by the Company

(whether under this Agreement or otherwise) and for a period of twenty-four (24)

months from and after the date of termination of such engagement, if such

engagement is terminated by the Consultant or is terminated by the Company for

Just Cause, neither the Consultant nor Duane shall, without the prior written

approval of the Board of Managers of the Company, directly or indirectly,

through any other person or entity, whether for itself or himself or as agent on

behalf of any other person or entity, and whether as employee, consultant,

principal, lender, partner, officer, director, stockholder or otherwise:

(i) solicit, raid, entice or induce, or cause, any person who presently is, or any

time during the Consultant’s engagement by the Company shall be or shall have

been, an employee of the Company or any of its Affiliates at any time during the

twelve (12) months preceding such solicitation, raid, enticement, inducement or

causation, to become employed or retained by any other person or entity; or

(ii) initiate communications with, solicit, entice, or induce any client,

customer or account who presently is, or at any time during the period of the

Consultant’s engagement by the Company shall be or shall have been, a client,

customer, supplier or account of the Company or Dental Concepts, Inc. (the

“Predecessor”) at any time during the twenty-four (24) months preceding such

communication, solicitation, enticement or inducement, to terminate or reduce

any contractual, business or other relationship with the Company;

(iii) sell any product or provide any service which is competitive with any of the

businesses, products or services of the Predecessor and/or the Company engaged

in or marketed during the period of the Consultant’s engagement with the

Company or during the 24-month period prior thereto (the “Activities’), or

promote, market, sell, become or acquire an interest in, or associate in a business

relationship with, or aid or assist, any other person or other entity whatsoever who

is engaged in any line of business competitive with any of the Activities;

(iv) become an employee, consultant, agent, principal, lender, partner, officer,

director, stockholder of, or otherwise provide services to or on behalf of, any

other person or entity who is engaged in any line of business competitive with any

of the Activities engaged in during the period of the Consultant’s engagement

with the Company or during the 24-month period prior thereto, or

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(v) promote, market, assist or participate in the development, sale, marketing

or licensing of any product or service competitive with any of those marketed by

the Predecessor and/or the Company during the period of the Consultant’s

engagement with the Company or the 24-month period prior thereto; (Ex. A at pp.

5-6, ¶ 7(b) (emphasis added).)

35. The Consulting Agreement clearly shows that CDS and Duane were aware of the

Dental Concepts strategy to sell to a strategic buyer in three to five years. The Consulting

Agreement provided a transaction incentive for a profitable sale that was tied to the selling price.

Specifically, if the selling price of Dental Concepts to the strategic acquirer was between

$15,000,000 and $24,999,999, Duane would receive $500,000; between $25,000,000 and

$29,999,999, Duane would receive $750,000; between $30,000,000 and $34,999,999, Duane

would receive $1,000,000.

36. Therefore, CDS and Duane had a direct economic incentive to sell Dental

Concepts to a strategic buyer at the highest transaction price possible.

C. KAPLAN’S EMPLOYMENT AGREEMENT.

37. Kaplan’s Employment Agreement was effective as of September 13, 1999. A

copy of Kaplan’s Employment Agreement is attached hereto as Exhibit B (under seal).

38. Kaplan’s Employment Agreement also clearly shows that Kaplan was aware of

the Dental Concepts strategy to sell to a strategic buyer in three to five years. The Employment

Agreement provided that if Dental Concepts sold during her employment for between

$15,000,000 and $24,999,999, Kaplan would receive $200,000; between $25,000,000 and

$34,999,999, she would receive $300,000. (Ex. B at Schedule B.)

39. Therefore, Kaplan also had a direct economic incentive to sell Dental Concepts to

a strategic buyer at the highest transaction price.

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D. THE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS WITH CDS,

DUANE AND KAPLAN.

40. As Executive Vice Presidents, Duane and Kaplan had substantial access to

confidential and proprietary information regarding the NIGHTGUARDTM dental protector

device, as well as the other products of Dental Concepts.

41. This confidential and proprietary information was closely guarded and kept secret

by Dental Concepts and related to, among other things, the design, manufacturing, marketing and

sale of the NIGHTGUARDTM dental protector device. Both Kaplan and Duane were involved

extensively in every aspect of the NIGHTGUARDTM business including brand development and

marketing, and the formulation of strategic sales and market goals and initiatives. Throughout

their employment, they were also intimately familiar with Dental Concepts’ consultants, brokers,

designers, suppliers, product formulation and production sources, and marketing strategies.

42. In recognition of this fact, both Duane and Kaplan signed a Proprietary

Information and Inventions Agreement and agreed that all such confidential information would

be the property of Dental Concepts. This duty covered all confidential and proprietary

information, whether already existing or “new contributions of value to the Company” made by

them while they were associated with Dental Concepts. A copy of Duane’s Proprietary

Information and Inventions Agreement is attached hereto as Exhibit C (under seal). A copy of

Kaplan’s Proprietary Information and Inventions Agreement is attached hereto as Exhibit D

(under seal).

43. Confidentiality covenants are common in this industry and both Duane and

Kaplan knew their meaning and import. Not surprisingly, DenTek itself requires its employees

and consultants to execute confidentiality covenants because of the highly competitive nature of

the industry and the danger of having trade secrets peddled to a competitor. On information and

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belief both Kaplan and Duane have executed confidentiality agreements prior to or concurrent

with their engagements with DenTek.

44. Both Duane’s and Kaplan’s Proprietary Information and Inventions Agreement

stated:

The Company possesses and will continue to possess information that has been

acquired, created, discovered or developed, or has otherwise become known to the

Company (including, without limitation, information acquired, created,

discovered, developed or made knowm by or to [CDS, Duane or Kaplan] during

the period of [CDS’s, Duane’s, or Kaplan’s employment or] engagement by the

Company), and/or in which property or other rights have been assigned or

otherwise conveyed to the Company, which information has commercial value in

the business in which the Company is engaged and none of which is in the public

domain except through the breach by [CDS, Duane or Kaplan] or anyone else of a

confidentiality duty to the Company. All of the aforementioned information is

hereinafter called “Proprietary Information.” By way of illustration, but not

limitation, Proprietary Information includes “Developments” (as herein defined),

data, know-how, techniques, marketing plans and opportunities, cost and pricing

data, strategies, forecasts and customer lists. “Developments” includes

inventions, product designs, developments, improvements, discoveries, trade

secrets, technologies, processes, research, methods, formulae, uses of any of the

foregoing, computer software and programs (including source code and related

documentation), test and/or experimental data and results, specifications,

laboratory notebooks, drawings and technical information and materials. (Exs. C

and D at p. 1, ¶ C (emphasis added).)

45. The Proprietary Information and Inventions Agreement also makes clear that it

covers all information gathered during CDS’s, Duane’s and Kaplan’s employment or association

with Dental Concepts:

All Proprietary Information shall be the sole property of the Company and its

assigns, and the Company and its assigns shall be the sole owner of all patents,

copyrights, trade secrets, trademarks, trade names and other rights in connection

therewith. [CDS, Duane and Kaplan] hereby assign to the Company any and all

rights which any of Obligors may have or acquire in any and all Proprietary

Information. At all times, both during Consultant’s engagement by the Company

and after its termination, [CDS, Duane and Kaplan] will keep in confidence and

trust all Proprietary Information, and will not use or disclose any Proprietary

Information without the written consent of the Company, except as may be

necessary in the ordinary course of performing Consultant’s duties as a consultant

to the Company. SINCE IT IS SOMETIMES DIFFICULT TO SEPARATE

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PROPRIETARY INFORMATION FROM THAT WHICH IS NOT, OBLIGORS

WILL REGARD ALL INFORMATION GAINED OR DEVELOPED AS A

RESULT OF ANY ASSOCIATION WITH THE COMPANY AS

PROPRIETARY INFORMATION. (Exs. C and D at p. 2, ¶ D.1.)

46. Further, CDS, Duane and Kaplan all “represent[ed] and warrant[ed]” that their

“obligations under [the Proprietary Information and Inventions Agreement] and otherwise as an

employee [or Consultant of] the Company and my performance under this Agreement or

otherwise, do not and will not breach any agreement or obligation in favor of any person or

entity whether to keep in confidence proprietary information acquired by me prior to

employment by the Company or any non-competition or similar agreement or otherwise. I have

not entered into, and I agree that I shall not enter into, any agreement either written or oral in

conflict herewith.” (Exs. C and D at p. 3, ¶ 6.)

E. DENTAL CONCEPTS INCREASES SALES AND DISTRIBUTION OF THE

DOCTOR’S® NIGHTGUARDTM THROUGH NATIONAL RADIO ADVERTISING.

47. In January 1997, and for several years thereafter, the NIGHTGUARDTM dental

protector was the only significant such product on the OTC market. Its quality and efficacy

generated significant product recognition, and the NIGHTGUARDTM mark became firmly

associated in the minds of the consuming public with the high-quality dental protector product

marketed and sold by Medtech.

48. In December 1999, Dental Concepts began to run its first national radio

advertisement for THE DOCTOR’S

® NIGHTGUARDTM. At the three retailers who were

stocking the product (CVS, Walgreens, and Giant stores in the Washington D.C. area),

immediate results were demonstrated: distribution and sales of the NIGHTGUARDTM brand

dental protector significantly increased.

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49. In the following years, advertising on national radio continued to generate

consumer recognition of the NIGHTGUARDTM brand dental protector. Radio advertisements

were featured on ABC, Westwood One, Premiere, Dial Global and Media America Radio

Networks. These distinctive advertisements featured the sound of teeth grinding together and

used the THE DOCTOR’S® NIGHTGUARDTM mark consistently.

50. The radio advertisements saw substantial results. In 2000, gross sales of the

NIGHTGUARDTM brand dental protector were around $2.3 million (up 248% from 1999). In

2001, after spending over $1 million on advertising, largely on national radio advertisements,

sales increased over 100%. This trend continued with advertising expenditures in 2002 to 2004

totaling over $4.75 million and sales growing in that same time period by 13%. In 2005 and

2006, THE DOCTOR’S® NIGHTGUARDTM was “on air” for over 40 weeks in each year.

51. Dental Concepts spent substantial amounts of time and money developing its

contacts in the industry. For instance, Item New Product Development (“Item”), a design firm in

Rhode Island, was identified and contacted to provide certain information about designing a

dental accessory for Dental Concepts, and as such was identified as a quality design firm for

dental accessories.

F. DENTAL CONCEPTS IMPROVES ITS EXISTING DENTAL PROTECTOR DESIGN AND

OBTAINS THE ’051 PATENT.

52. Richard Riordan started working at Dental Concepts as the Vice President of

Operations in October 2001. At that time, the NIGHTGUARDTM brand dental protector was

manufactured by Stelray Plastic Products, Inc. (“Stelray”), an injection molder located in

Connecticut.

53. In 2001, the NIGHTGUARDTM brand dental protector was sold as a two-part

device that utilized a separate base to hold the moldable material in place while the dental

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imprint was formed. The separate base was used during the self-fitting process of the consumer.

Mr. Lesser was looking to improve the NIGHTGUARDTM brand dental protector.

54. Dental Concepts discussed ways of improving the NIGHTGUARDTM brand

dental protector with Stelray, and certain research and development was conducted with Stelray.

After some research and development with Stelray, Dental Concepts retained Frank Lesniak, a

chemist who was associated with Hayloft Enterprises, Inc., to design an improved dental

protector. Mr. Riordan, as the head of operations for Dental Concepts, was to be the liaison

between Lesser and Kaplan on the one hand, and Frank Lesniak, on the other. Dental Concepts

would dictate the criteria, performance and appearance of the product to Mr. Lesniak, who was

responsible for the technical design of the product.

55. Dental Concepts also sought out the assistance of several doctors from Tufts

Dental School to assist Dental Concepts from a medical and dental perspective. These doctors,

Dr. Noshir Mehta (“Dr. Mehta”), Dr. Gerard Kugel (“Dr. Kugel”), and Dr. Ayman Aboushala

(“Dr. Aboushala”), were involved with looking at the prototypes, making design and fit

suggestions, and generally collaborating with Dental Concepts as the “technical experts.”

(Collectively Dr. Mehta, Dr. Kugel and Dr. Aboushala are referred to as the “Tufts Doctors.”)

56. The development process with Mr. Lesniak took about a year, with several

directional changes. The formulation for the new dental protector was developed and Mr.

Lesniak turned over all patent rights to Dental Concepts. Because of the directional changes, this

device was marketed first to dentists for a chair-side fitting under the Dental Concepts’

BRUXGUARDTM brand.

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57. Dental Concepts engaged the law firm of Natter & Natter, a New York firm, to

advise it regarding the intellectual property of Dental Concepts, including to act as trademark

counsel and patent counsel responsible for filing and monitoring the patents of Dental Concepts.

58. Medtech’s new dental protector and technology was covered by U.S. Patent No.

6,830,051, issued by the U.S. Patent and Trademark Office on December 14, 2004 (the “’051

Patent”). A true and correct copy of the ’051 Patent is attached hereto as Exhibit E. The ’051

Patent is valid and is subsisting in full force and effect, and Medtech is the current assignee of all

rights under the ’051 Patent. Medtech has complied with all appropriate requirements to

maintain the validity and effect of the ’051 Patent.

59. The United States Patent and Trademark Office has recognized the industryleading developments in dental protector products by Medtech, as indicated by the following

United States patents:

Hidalgo, et al, U.S. Pat. No. D504,744 (issued May 3, 2005), “Bruxism Guard”

Wagner, U.S. Pat. No. D382,965 (issued Aug. 26, 1997), “Mouthguard”

Wagner, U.S. Pat. No. 5,566,684 (issued Oct. 22, 1996), “Custom Fit Mouthguard”

60. The grant via the United States Patent and Trademark Office of the ’051 Patent is

prima facie evidence of the validity of such patent. The patent grants Medtech the right to

exclude others from making, using, selling or offering to sell the patented invention in commerce

in the United States.

61. DenTek, Duane, and Kaplan are estopped by common law and assignor estoppel

from denying the validity of the ’051 Patent.

62. The ’051 Patent is constructive notice to DenTek and to all others of Medtech’s

ownership of the patented invention. Moreover, Medtech’s NIGHTGUARDTM dental protector

products have long been and are currently marked with the applicable U.S. Patent Numbers.

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63. Dental Concepts spent substantial time and money in efforts to obtain FDA

approval to sell its bruxism devices in the over-the-counter market. In that regard, Dental

Concepts first engaged the law firm of Hyman, Phelps & McNamara, P.C. (“Hyman Phelps”)

and, subsequently, Hogan & Hartson with respect to FDA regulatory issues. Hogan & Hartson

prepared Dental Concepts’ OTC 510(k) submission, but only after researching and submitting

under other theories, notably a petition under section 513(g) of the Act. Thus, the FDA approval

process was long, involved, and expensive. Moreover, in connection with that approval process,

certain confidential submissions were made to the FDA regarding various aspects of the product.

64. In her executive position with Dental Concepts, Kaplan was the primary liaison

between Dental Concepts and its intellectual property counsel (Natter & Natter) and regulatory

counsel (Hyman Phelps, and Hogan & Hartson) and, as such, was privy to highly sensitive and

confidential legal advice from Dental Concepts’ trusted intellectual property and regulatory

counsel.

G. DENTAL CONCEPTS IS SOLD TO PRESTIGE FOR $31 MILLION.

65. Throughout their time at Dental Concepts, both Duane and Kaplan knew that the

ultimate goal was to sell the Company to a potential acquirer and, in or around late-2004, that

process began. At the initiation of Hamilton Partners, Dental Concepts started looking for

bidders for the Company.

66. Duane and Kaplan were heavily involved in pitching Dental Concepts to potential

acquirers. Both participated in management meetings with potential acquirers and both were

responsible for explaining certain aspects of the company. As Duane and Kaplan both had

transaction incentives built into the Consulting Agreement and Employment Agreement, both

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had an incentive for Dental Concepts to be sold at the highest possible price to any strategic

acquirer.

67. Eventually, Dental Concepts entered into discussions with Prestige Brands

Holdings, Inc. (“Prestige”) (which would eventually integrate Dental Concepts into Medtech).

68. As a result of these acquisition discussions, Prestige was provided with

information regarding Dental Concepts to evaluate the company in terms of a potential

transaction. In order to receive this confidential company information to evaluate the financial,

market, and other strategic positioning of Dental Concepts, Prestige was required to execute a

Confidentiality Agreement on June 9, 2005. A copy of the Prestige Confidentiality Agreement is

attached as Exhibit F (under seal).

69. The Prestige Confidentiality Agreement contained the following provision

restricting any further use and disclosure of confidential information obtained as part of the

transaction:

As a condition of being furnished such [Company] information, [Prestige] hereby

agree[s] to treat any information concerning the Company (whether oral or

written and whether prepared by or on behalf of the Company) which is furnished

to [Prestige] or [its] Representatives (as defined below) by or on behalf of the

Company (herein collectively called referred to as the “Evaluation Material”) in

accordance with the provisions of this letter, and to take and refrain from taking

certain other actions herein set forth. The term “Evaluation Material” shall also

include notes, analyses, compilations or other documents or material prepared by

[Prestige] or [its] Representatives which contain, reflect or are based on

information furnished to [Prestige] or [its] Representatives pursuant hereto. (Ex.

F at p. 1.)

70. From June through November 2005, both Duane and Kaplan participated in

“management presentations” presenting and pitching a Dental Concepts acquisition to Prestige.

The management presentations indicated that Dental Concepts was in a strong market position,

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and that any competitive entry into the dental protector market was subject to “Significant

barriers” because of the design and utility patents, including the ’051 Patent.

71. Prestige ultimately acquired Dental Concepts in November 2005 for a transaction

price of around $31 million. Certain post-closing purchase price adjustments (largely due to

issues with the balance sheet) were made to the escrowed funds for the transaction that

negatively affected Duane’s transaction incentive bonus in the amount of $250,000.

H. DUANE AND KAPLAN REAFFIRM THEIR CONFIDENTIALITY OBLIGATIONS AND

EXECUTE A GENERAL RELEASE OF DENTAL CONCEPTS.

72. As part of that acquisition, both Duane and Kaplan executed a General Release

with Dental Concepts under which they received the transaction incentive dictated by the

Consulting Agreement and Employment Agreement, as well as other benefits. A true and correct

copy of Duane’s General Release is attached hereto as Exhibit G (under seal). A true and

correct copy of Kaplan’s General Release is attached hereto as Exhibit H (under seal).

(Collectively, Exhibits G and H are referred to as the “General Releases.”)

73. The General Releases specified that they were executed “[i]n connection with the

acquisition of [Dental Concepts] by [Prestige]” and that Duane and Kaplan would each receive a

severance and contractual payout. “In exchange for the [that payout], [Duane and Kaplan intend

to] fully and unconditionally release any and all claims” against Dental Concepts.” (Exs. G and

H at p. 1.)

74. Duane was paid $750,000 (which was four times his annual salary) at the time

that he executed the General Release and agreed to the Confidentiality Clause. (Ex. G at p. 1, ¶

1.)

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75. Kaplan was paid $300,000 (which was two times her annual salary) at the time

that she executed the General Release and agreed to the Confidentiality Clause. (Ex. H at p. 1, ¶

1.)

76. Dental Concepts made clear, again, in the General Releases that it valued its

confidential and proprietary information. The General Releases are further evidence of the

efforts that Dental Concepts made to keep that information confidential.

77. As part of the Duane General Release with Dental Concepts, Duane agreed to

keep secret the confidential and proprietary information he learned while at Dental Concepts.

The Duane General Release contained the following “Confidential Information” clause:

Confidential Information. Employee [Duane] agrees that it will not use, divulge,

sell or deliver to or for any other person, firm or corporation other than the

Company [Dental Concepts] and its respective subsidiaries, affiliates, successors

and assigns any confidential information and material (statistical or otherwise)

relating to the Company’s business, including, but not limited to, confidential

information and material concerning manufacturing, distribution, marketing,

sales, advertising, customers, employees, suppliers, licensors, financial

information, methods and processes incident to the business, and any other secret

or confidential information. On or before the Effective Date, Employee will

surrender to the Company all lists, books and records of or in connection with the

Company’s business and all other property belonging to the Company. (Ex. G at

p. 3, ¶ 7.)

78. CDS was not a party to the Release.

79. As part of the Kaplan General Release with Dental Concepts, Kaplan likewise

agreed to keep secret the confidential and proprietary information she learned while at Dental

Concepts. The Kaplan General Release contained the following “Confidential Information”

clause, with Kaplan being the “Employee” and Dental Concepts the “Company”:

Confidential Information. Employee agrees that it will not use, divulge, sell or

deliver to or for any other person, firm or corporation other than the Company and

its respective subsidiaries, affiliates, successors and assigns any confidential

information and material (statistical or otherwise) relating to the Company’s

business, including, but not limited to, confidential information and material

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concerning manufacturing, distribution, marketing, sales, advertising, customers,

employees, suppliers, licensors, financial information, methods and processes

incident to the business, and any other secret or confidential information. On or

before the Effective Date, Employee will surrender to the Company all lists,

books and records of or in connection with the Company’s business and all other

property belonging to the Company. (Ex. H at p. 3, ¶ 7.)

80. As the successor in interest to Dental Concepts, Medtech can enforce the terms of

the General Releases. As the General Release was executed “[i]n connection with the

acquisition” of Dental Concepts by Prestige, the possibility of actions by Medtech to enforce the

terms of the General Releases were clearly contemplated by Duane and Kaplan at the time the

General Release was executed.

81. The General Releases also provide that “the prevailing party” in any litigation to

enforce the agreement “shall be entitled to recover from the opposite party all reasonable

attorneys’ fees and costs incurred in connection with such action.” (Exs. G and H at p. 3, ¶ 6.)

II. MEDTECH HAS CONTINUED TO MARKET THE NIGHTGUARDTM BRAND

DENTAL PROTECTOR SINCE ACQUIRING DENTAL CONCEPTS.

82. From November 2005 to the present, Medtech has continued where Dental

Concepts left off and has spent a considerable amount of time, money, and labor in marketing

and promoting dental protector products under the NIGHTGUARDTM mark through extensive

radio and television advertising campaigns. (Hereinafter, Dental Concepts and Medtech are

collectively referred to as “Medtech.”)

83. Medtech made a shift to marketing the bruxism device previously sold

professionally as BRUXGUARD®, which utilizes the technology of the ’051 patent, as a new

and improved NIGHTGUARDTM brand OTC bruxism device. This shift was accompanied by a

packaging redesign and substantial marketing efforts, which included national television

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advertising. These business plans were confidential but were known to Kaplan and Duane in

their transitional roles.

84. On December 22, 2005, Hogan & Hartson submitted a premarket notification

under Section 510(k) of the Federal Food, Drug, and Cosmetic Act on behalf of Medtech.

Hogan & Hartson noted in the cover letter correspondence:

Dental Concepts considers its intent to market [THE DOCTOR’S®

NIGHTGUARDTM] as confidential commercial information. The company has

not disclosed its intent to market this device to anyone except its employees,

others with a financial interest in the company, its advertising and law firms, and

its consultants. The company, therefore requests that FDA not disclose the

existence of this application until such time as final action on the submission is

taken.

In addition, some of the material in this application may be trade secret or

confidential commercial or financial information within the meaning of 21 C.F.R.

§ 20.61, and therefore, not disclosable under the Freedom of Information Act

even after the existence of this application becomes public.

85. Medtech obtained FDA approval on March 3, 2006 to sell the NIGHTGUARDTM

dental protector OTC. Prior to that date, sales were made OTC with the knowledge of the FDA,

but without formal approval.

86. Medtech originated the market by becoming the first to obtain formal FDA

approval for an OTC dental protective device for bruxism or night time tooth grinding on March

3, 2006. A true and correct copy of the summary basis of approval is attached as Exhibit I. All

previous bruxism devices had been limited to ‘prescription only’ sales by the FDA approval

process.

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A. CDS, DUANE AND KAPLAN CONTINUE THEIR CONSULTING AND EMPLOYMENT

AT PRESTIGE THROUGH FEBRUARY 2006.

87. CDS and Duane continued consulting for Medtech through and including

February 2006. Duane stayed on board until Dental Concepts was completely transitioned into

Medtech.

88. CDS and Duane declined continued employment in a sales position that was

offered by Prestige.

89. Kaplan continued her employment with Medtech/Dental Concepts through and

including February 2006. Kaplan assisted with the integration of Dental Concepts into the

Prestige systems and, as such, was privy to the continued strategic thinking of Medtech. For

instance, in December 2005, Kaplan was included in high-level discussions within Medtech

regarding the future considerations and strategy of Medtech for THE DOCTOR’S®

NIGHTGUARDTM.

90. In the context of her continued work with Medtech, she specifically provided

verbal assurances to Prestige that she would keep information she learned during that time period

in the strictest of confidences.

91. Kaplan declined a position that was offered by Prestige. When Kaplan left in

February 2006, she had indicated that she was going to work for StaiNo, LLC of Long Eddy,

New York. StaiNo manufactures certain oral care products unrelated to Bruxism devices.

92. Under the Consulting Agreement, the provisions of the Covenant Not to Compete

and Non-Solicitation Agreement (Section 7), as well as the Proprietary Information and

Inventions Agreement, survive “the termination or expiration of this [Consulting] Agreement

and/or the Term, irrespective of the reason therefore, including without limitation under

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circumstances in which the Consultant or Duane continues thereafter to be engaged by the

Company.” Ex. A at p. 6, ¶ 7(c) (emphasis added).

93. The Consulting Agreement’s Covenant Not to Compete and Non-Solicitation

Agreement survived the acquisition and were applicable to any consulting work of Duane and

CDS after the acquisition. See Ex. A ¶ 7(c).

B. MEDTECH CONTINUES TO INVEST MILLIONS OF DOLLARS ENHANCING THE

PROMINENCE OF THE NIGHTGUARDTM MARK.

94. At all times, Medtech’s THE DOCTOR’S® NIGHTGUARDTM packaging has

consistently and prominently featured the NIGHTGUARDTM mark on the front of the packaging,

as pictured below (hereinafter referred to as Medtech’s NIGHTGUARDTM “Trade Dress”):

NIGHTGUARDTM PACKAGING

(THROUGH FALL 2006)

NIGHTGUARDTM PACKAGING

(FALL 2006 TO THE PRESENT)

95. Since Fall 2006, Medtech’s packaging has prominently displayed the

NIGHTGUARDTM on the front cover, with “NIGHT” in bold letters and “GUARD” set off in a

contrasting font. The package lists on its side panel certain warnings and instructions. The

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package also prominently states on the back, in contrasting red and purple, the following featured

phrase:

Designed by a dentist

for protection and comfort.

Custom fit by you

for convenience.

The package layout of Medtech’s NIGHTGUARDTM dental protector is readily recognizable to

consumers for dental protector devices. A true and correct copy of the packaging for Medtech’s

NIGHTGUARDTM dental protector is attached hereto as Exhibit J.

C. THE SUCCESS OF THE NIGHTGUARDTM MARK

96. As a direct result of its marketing and promotional activities, Medtech has created

a distinctive designation to the public of Medtech as the source of a high-quality dental protector

and related products under the NIGHTGUARDTM mark and Trade Dress. (Two different drug

chains initially attempted to trade on this recognition by adopting similar purple, red and white

Trade Dress. Both chains have ceased that practice in response to enforcement actions by

Medtech.)

97. Through its extensive advertising campaign and sales of high-quality dental

protectors to the public under the NIGHTGUARDTM brand name, Medtech has successfully

established the NIGHTGUARDTM mark as a widely-recognized symbol of high-quality dental

protectors, and has accumulated incalculable goodwill associated with Medtech’s

NIGHTGUARDTM mark and Trade Dress.

98. Medtech sells the NIGHTGUARDTM dental protector with an “At-Home Fitting

Instructions” insert that describes the dental protector product and how the customer should use

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the product. A true and correct copy of the “At-Home Fitting Instructions” insert is attached as

Exhibit K hereto.

99. Since use of the NIGHTGUARDTM mark began, Medtech has used the

NIGHTGUARDTM mark to market its dental protector through advertisements, on nationally

syndicated radio networks and shows, and on cable television. The advertisements display the

NIGHTGUARDTM mark.

100. In the past three years alone, Medtech has spent approximately $9,000,000 in

advertising and promotion to build the NIGHTGUARDTM brand name. Those efforts include a

recent cable television advertising campaign. As a result of that advertising campaign, growth in

sales increased dramatically.

101. The NIGHTGUARDTM dental protector product has enjoyed a consistently high

level of commercial success. Over the past six years, Medtech has sold more than $43,000,000

of its NIGHTGUARDTM dental protector products. Notwithstanding the recent addition of

numerous competitors in this category, the NIGHTGUARDTM dental protector product remains

the recognized category leader.

102. By virtue of this success, the NIGHTGUARDTM trademark has become associated

exclusively with Medtech. Medtech presently owns a pending federal trademark application for

its NIGHTGUARDTM mark (NIGHTGUARD, Ser. No. 77/056,556, United States Patent and

Trademark Office).

103. Medtech owns a federal copyright registration for its packaging and “At-Home

Fitting Instructions” insert (Exhibit K), as reflected in U.S. Reg. No. TX 6-536-309, issued by

the U.S. Register of Copyrights on April 23, 2007 (the “Copyright Registration”). A true and

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correct copy of the Copyright Registration is attached hereto as Exhibit L. The Copyright

Registration is valid and is subsisting in full force and effect.

104. Medtech’s Copyright Registration is prima facie evidence of the validity of such

registration, of Medtech’s ownership of the copyright, and of Medtech’s exclusive right to use

the copyrighted material. Moreover, Medtech’s packaging and “At-Home Fitting Instructions”

carry a copyright notice that is actual notice to DenTek and to all others of Medtech’s ownership

of the copyrighted material.

D. MEDTECH CONTINUED TO MEET AND CONFER ABOUT ITS STRATEGY AND

PRODUCTS WITH THE TUFTS DOCTORS THROUGH 2006.

105. Medtech continued throughout 2006 to meet and confer with the Tufts Doctors

regarding its strategy to market the NIGHTGUARDTM brand dental protectors.

106. In June 2006, Medtech met with the Tufts Doctors to share their strategic plan for

THE DOCTOR’S®brand in a confidential meeting. The Tufts Doctors were also informed of

certain meetings with key accounts while a formal engagement agreement was in the process of

being finalized.

107. These negotiations with the Tufts Doctors were to finalize a formal arrangement

memorializing the informal consulting arrangement that had existed for years with Dental

Concepts. The negotiations continued from around late-June 2006 through November 2006.

III. DENTEK, WITH THE ASSISTANCE OF DUANE AND KAPLAN, USED

MEDTECH’S CONFIDENTIAL INFORMATION TO DEVELOP ITS

COMPETING DENTAL PROTECTOR.

108. DenTek is currently marketing and selling a dental protector in interstate

commerce for bruxism or nighttime tooth grinding in the over-the-counter market which

improperly utilizes Medtech’s NIGHTGUARDTM mark. DenTek began selling its product in or

around March 2007.

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A. DENTEK RECRUITED RAY DUANE IN OR BEFORE JULY 2006 TO CREATE A

COMPETING DENTAL PROTECTOR FOR DENTEK.

109. Only after the longstanding success of the NIGHTGUARDTM devices in the

marketplace did DenTek begin to adopt Medtech’s NIGHTGUARDTM trademark, patented

invention, and copyrighted material in a deliberate and transparent attempt to wrongfully profit

from Medtech’s investments in the intellectual property protecting its NIGHTGUARDTM dental

protector.

110. In contrast to the years of hard work and advertising expenses expended by

Medtech, DenTek was able to quickly bring a dental protector to market, and capture a large

percentage of the market share in a mere matter of months by using Medtech’s confidential and

proprietary information, as well as its trademark, copyrighted material, and patented product.

111. In July 2006, only four months after Duane’s engagement with Medtech had

ended, DenTek contacted Duane and asked if he would be interested in participating in a new

project with DenTek. DenTek is engaged in distributing a line of dental accessories that are

competitive with Dental Concepts.

112. Under the Consulting Agreement’s Covenant Not to Compete and NonSolicitation Agreement, CDS and Duane agreed that “for a period of twenty-four (24) months

from and after the date of termination of such engagement [March 1, 2006 through February

29, 2008] . . . neither the Consultant nor Duane shall . . . directly or indirectly . . . become an

employee, consultant . . . or otherwise provide services to or on behalf of, any other person or

entity who is engaged in any line of business competitive with any of the Activities engaged in

during the period of the Consultant’s engagement with the Company or during the 24-month

period prior thereto.” (Ex. A at pp. 4-5, ¶ 7(b) (emphasis added).)

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113. Despite the fact that both CDS and Duane were bound by the terms of the

Consulting Agreement’s Covenant Not to Compete and Non-Solicitation Agreement, when

asked whether he was subject to any non-competition covenants with Dental Concepts or

Medtech, Duane responded that he was not. DenTek did not ask to see any employment

agreements with Dental Concepts.

114. Sometime after the initial phone conversation, most likely in July 2006, Duane

agreed to meet with David Fox (President of DenTek) in Philadelphia, Pennsylvania to discuss

the nature of the assignment. Allegedly at that meeting, Fox told Duane that the project was

bringing an OTC bruxism device to the market that would compete with THE DOCTOR’S®

NIGHTGUARDTM.

115. Under the Consulting Agreement’s Covenant Not to Compete and NonSolicitation Agreement, CDS and Duane agreed that “for a period of twenty-four (24) months

from and after the date of termination of such engagement [March 1, 2006 through February

29, 2008] . . . neither the Consultant nor Duane shall . . . directly or indirectly . . promote,

market, assist or participate in the development, sale, marketing or licensing of any product or

service competitive with any of those marketed by the Predecessor and/or the Company during

the period of the Consultant’s engagement with the Company or the 24-month period prior

thereto.” (Ex. A at pp. 4-5, ¶ 7(b) (emphasis added).)

116. Despite the fact that he was prohibited from doing so, Duane allegedly failed to

inform Fox that he could not work on the project, given that he was bound by the terms of a noncompetition covenant. Instead, Duane agreed to act as a consultant to DenTek.

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B. DUANE SOLICITS FURTHER CONFIDENTIAL AND PROPRIETARY INFORMATION

FROM EXISTING PRESTIGE EMPLOYEES.

117. On August 21, 2006, Riordan submitted his resignation to Medtech and informed

Medtech that he had taken a position with a company that did not compete with Medtech in the

oral care market.

118. By August 24, 2006, Duane already knew that Riordan had resigned from

Medtech as Duane and Riordan had a close and personal friendship. After meeting with DenTek

and formulating DenTek’s strategy, Duane contacted Richard Riordan, who was still working for

Medtech and privy to confidential and proprietary information, and requested specific

information relating to Medtech’s strategy for its Bruxguard®products and other information to

assist in his efforts with developing DenTek’s competitive dental protector. In exchange, Duane

offered Riordan access to DenTek’s Chief Executive Officer, John Jansheski.

119. Duane’s inquiries to Riordan were intended to gather Medtech’s inside

confidential and proprietary information and were designed to solicit confidential and proprietary

information regarding Medtech’s future strategy and product line development.

C. CDS AND DUANE FINALIZE A CONSULTING AGREEMENT WITH DENTEK.

120. On or about August 25, 2006, DenTek and Duane finalized the terms of their

arrangement and signed an agreement pursuant to which Duane agreed to assist DenTek with the

development of an OTC bruxism device to compete with THE DOCTOR’S®

NIGHTGUARDTM. A copy of the CDS/DenTek Agreement is attached as Exhibit M (under

seal).

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121. Around the same time as DenTek and Duane finalized their August 25, 2006

agreement to create a new bruxism device, Duane set out the goals for the consulting agreement.

A copy of the Objectives Sheet is attached as Exhibit N (under seal).

122. At the time that the engagement was agreed upon, DenTek was privy to

information that the world’s largest retailer was interested in a one-size fits all alternative to the

existing small, medium and large configuration.

123. Duane and/or Kaplan misappropriated Medtech’s confidential and proprietary

strategic information, namely its decision to maintain the three-size platform despite retailer

pressure for a one-sku product (a one-size-fits-all device). Duane and Kaplan possessed

Medtech’s strategic information because of their association with Medtech and because of

Duane’s efforts in misappropriating this competitive information from Riordan.

124. Therefore, Duane, Kaplan and DenTek knew that a window of opportunity

existed to enter into the market with a one-size-fits-all device and gain shelf space in the largest

retailer with minimal or no risk. The danger of expending valuable development expenses and,

thereby, being beaten to the market by Medtech was nonexistent given Medtech’s strategic

decision—known only to insiders—to maintain and emphasize the three-size product platform.

125. DenTek and Duane intentionally kept their association and development of the

dental protector a secret from the trade generally, and from Medtech specifically.

126. Medtech did not know of Duane’s association with DenTek until late-June 2007,

after this lawsuit had been filed; his pervasive involvement in creating the DenTek dental

protector was not known until August 3, 2007, when he was deposed in the pending case against

DenTek.

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D. DENTEK AND DUANE SYSTEMATICALLY CALL ON DENTAL CONCEPTS’

SUPPLIERS, CONSULTANTS AND FORMER EMPLOYEES TO DEVELOP THEIR

COMPETING PRODUCT.

127. DenTek had no prior experience in the dental protector market.

128. By virtue of Duane and Kaplan’s inside information, DenTek was able to virtually

eliminate the development time normally associated with entering into a new line of products.

129. All evaluation and vetting processes were truncated based on Duane and Kaplan’s

inside information about suppliers, designers, consultants, and legal advisors—all to the specific

disadvantage of Medtech. Such information was critical, because of a limited window of

opportunity with the largest retailer that made time of the essence.

130. After their engagement, and in accordance with their plan, DenTek, Duane, and

Kaplan systematically called upon and recruited various persons and companies known to Duane

and Kaplan only because they had the confidential and proprietary information that they had

from their time at Dental Concepts, and because of Duane’s clandestine activities. In this regard:

a. Shortly after he began working for DenTek, Duane called Item, who was

known to him because of his association with Dental Concepts;

b. Duane contacted Stelray and Proman Products, who were identified to

Duane by Riordan, to interview them as potential molders and to help him

develop a dental protector for DenTek.

c. Duane or DenTek, at Duane’s direction, contacted Natter & Natter,

Hyman, Phelps, and Hogan & Hartson and asked those firms—that were in

possession of confidential and proprietary information from Dental Concepts—to

represent DenTek in connection with the Product to compete with THE

DOCTORS® NIGHTGUARDTM.

d. In or around late-August or early-September, Kaplan and Duane

personally called and solicited the Tufts Doctors to work for DenTek and provide

information and feedback on the one-size-fits-all dental protector that DenTek

was developing.

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e. Duane recruited Kaplan, the former Vice President of Marketing at Dental

Concepts, to work for DenTek in developing its one-size-fits-all dental protector

product.

131. The Consulting Agreement’s Covenant Not to Compete and Non-Solicitation

Agreement prohibited CDS and Duane from “initiat[ing] communications with, solicit[ing],

entic[ing], or induc[ing] any. . . account who presently is, or at any time during the period of the

Consultant’s engagement by the Company shall be or shall have been, a client, customer,

supplier or account of the Company or Dental Concepts, Inc. (the “Predecessor”) at any time

during the twenty-four (24) months preceding such communication, solicitation, enticement or

inducement, to terminate or reduce any contractual, business or other relationship with the

Company.” (Ex. A at pp. 4-5, ¶ 7(b) (emphasis added).)

132. Duane personally (or someone at DenTek on Duane’s behalf) called and solicited

Riordan to be “an operations guy to put into DenTek’s New York office” sometime shortly after

Riordan left Medtech. This offer of employment was a follow-up to the implied quid pro quo for

Riordan’s sharing confidential and proprietary information with Duane prior to Riordan’s

resignation.

133. In or around mid-October, Duane personally (as well as someone at DenTek on

Duane’s behalf) called and solicited Kaplan to work as a “project leader” on the development of

DenTek’s dental protector. Duane personally was responsible for recruiting Kaplan to DenTek:

(a) Duane suggested Kaplan to DenTek; (b) Duane informed DenTek of the ways to best induce

Kaplan to work for DenTek; and (c) Duane called Kaplan and personally recommended DenTek

to her.

134. Duane also agreed to modify his August 25, 2006 Agreement with DenTek

specifically in order to make room for Kaplan. A true and correct copy of the Addendum is

attached hereto as Exhibit O (under seal).

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135. Although ostensibly unrelated, Duane subsequently entered into a second

“consulting agreement” under which, upon information and belief, he continues to be

compensated.

136. The Consulting Agreement’s Covenant Not to Compete and Non-Solicitation

Agreement prohibited CDS and Duane from “solicit[ing], raid[ing], entic[ing] or induc[ing], or

caus[ing], any person who presently is, or any time during the Consultant’s engagement by the

Company shall be or shall have been, an employee of the Company or any of its Affiliates at any

time during the twelve (12) months preceding such solicitation, raid, enticement, inducement or

causation, to become employed or retained by any other person or entity.” (Ex. A at pp. 4-5, ¶

7(b) (emphasis added).)

E. DENTEK, DUANE AND KAPLAN PROCURE A RELATIONSHIP WITH ITEM AND

STELRAY.

137. Item was hired to design the dental protector for DenTek.

138. Stelray was hired to work as a manufacturer for DenTek.

139. Upon information and belief, Duane and Kaplan also engaged AGI/Klearfold, the

packager used by Dental Concepts for another dental protector device.

F. DENTEK, DUANE AND KAPLAN USED MEDTECH’S CONFIDENTIAL INFORMATION

TO PROCURE A RELATIONSHIP WITH THE TUFTS DOCTORS.

140. The fact that the Tufts Doctors were working with Dental Concepts and Medtech

was confidential information. As a result of Duane and Kaplan’s efforts, DenTek knew of this

confidential relationship, including the terms of the relationship and the status of negotiations,

and used this in competition with Medtech to compete for a consulting contract with the Tufts

Doctors.

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141. In early-September 2006, Kaplan and Duane made contact with Dr. Mehta and

Dr. Aboushala. While Medtech was not informed that the Tufts Doctors were negotiating with

DenTek, DenTek was informed that the Tufts Doctors were negotiating with Medtech very early

in the process.

142. On September 5, 2006, Kaplan e-mailed Dr. Mehta and asked critical strategic

questions regarding Medtech:

Dear Nosh:

How are you? Hope you and your family are well. It has been about 6 months

and I wanted to check in, say hi and be sure that you and your family are well.

I am doing fine. All is well with my family and business. I hope all is well at

Tufts. Are you doing anything really fun (like it was when we were working

together)? Are you doing any work with Prestige? The Doctor’s NightGuard or

BruxGuard? . . . .

I would love you hear back from you when you have a moment.

(Exhibit P (under seal).)

143. On September 7, 2006, Dr. Mehta e-mailed “Yes we are in discussion with

Prestige . . . for the Bruxguard.” Ms. Kaplan wrote in reply:

Everything is well here. I know Ray [Duane] is reaching out to you and I would

listen to what he has to say. I hope to get to Boston and will let you know when.

Then, after an additional exchange, she states: “I hope you have the opportunity to meet with

Ray and discuss his potential opportunity.” (Exhibit Q (under seal).)

144. Duane subsequently used this initial contact by Kaplan to reach out to the Tufts

Doctors and, ultimately, recruit them to work for DenTek. On or around October 12, 2006,

DenTek and Dr. Mehta from Tufts University executed a Confidentiality and Non-Disclosure

Agreement. The Confidentiality Agreement stated:

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Disclosure of Information. DenTek may from time to time disclose and provide

copies of certain Confidential Information to Dental Consultant [Dr. Mehta] so

Dental Consultant may conduct the Purpose [design and development of

packaging concepts].

Confidential Nature. Dental Consultant recognizes and acknowledges the

confidential nature and competitive value of the Confidential Information and that

damage could result to DenTek if any of the Confidential Information is disclosed

to any third party. Each party acknowledges that the receiving party has not

received and will not receive any right or claim with respect to any such

Confidential Information.

Use of Confidential Information. Dental Consultant shall use the Confidential

Information solely for the purpose of conducting the Purpose, and such

Confidential Information shall not be used in any way detrimental to DenTek.

Dental Consultant shall safeguard the Confidential Information and not allow it to

be viewed except by itself and its proper Representatives. . . .

145. Upon information and belief, the other Tufts Doctors executed a similar

Confidentiality Agreement with DenTek after meeting with DenTek in Boston where DenTek

showed the Tufts Doctors a product that had already been designed.

146. Despite the fact that the Tufts Doctors had been engaged by DenTek, they

continued to negotiate with Medtech and received confidential information about Medtech’s

strategy with the NIGHTGUARDTM brand dental protector and with certain of Medtech’s

customers. On October 14, 2006, for instance, Medtech discussed its ongoing strategy with the

NIGHTGUARDTM brand dental protector and dealings with its customers.

147. In November 2006, DenTek and the Tufts Doctors discussed a Letter of

Agreement and Consulting Agreement which contained an exclusivity provision prohibiting any

work for Medtech. That agreement also included a Confidentiality clause stating:

Confidential Information. As a consultant to DenTek, Consultant has access to

Confidential Information (as defined herein). Consultant agrees to maintain the

confidentiality of all Confidential Information throughout the term of this

Agreement and for a period of three (3) years after the termination of this

Agreement. For purposes of this section, the term “Confidential Information”

means data and information (in whatever form) relating to any aspect of the

business of DenTek (or its subsidiaries and/or affiliates) which is or has been

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disclosed to Consultant or of which Consultant becomes aware. . . . All

Confidential Information is and shall remain solely the property of DenTek or its

subsidiaries and/or affiliates.

148. The Tufts Doctors and DenTek never agreed on the terms of a final written

contract because DenTek insisted upon including an exclusivity provision in the contract.

However, the Tufts Doctors were engaged and remunerated by DenTek for performing various

consulting services for the development of DenTek’s product. This had the intentional effect of

creating a conflict so that the Tufts Doctors could no longer work for Medtech.

149. Even after the exchange of the agreement with DenTek, the Tufts Doctors

continued to communicate with Medtech and inquire about the “final agreement” and

“expedit[ing] the process.” In fact, it was not until December 12, 2006 that Dr. Mehta

communicated finally that he had “discuss[ed] with the other company that we would work with

them on a OTC bruxism guard that verbally we had agreed to do this only with their company.”

150. DenTek never revealed to the Tufts Doctors the goals of DenTek’s project. If the

goals reflected in Exhibit N had been conveyed to the Tufts Doctors, DenTek would have been

unsuccessful in procuring any consulting relationship with the Tufts Doctors.

G. DENTEK, DUANE AND KAPLAN HIRED MEDTECH’S LEGAL COUNSEL.

151. Hogan & Hartson was hired by DenTek to provide legal services to DenTek in

obtaining FDA approval to sell the DenTek dental protector OTC.

152. As it had for Medtech less than a year earlier, Hogan & Hartson prepared and

filed on DenTek’s behalf a premarket notification under Section 510(k) of the Federal Food,

Drug, and Cosmetic Act for its dental protector. Hogan & Hartson’s filing for DenTek was made

on November 17, 2006.

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153. Hogan & Hartson agreed to represent DenTek in the 510(k) premarket approval

for a device that was, by DenTek’s own admission, substantially the same—and competitive

to—THE DOCTOR’S® NIGHTGUARDTM dental protector. Hogan & Hartson undertook this

representation without obtaining any conflicts waiver from Medtech.

154. Moreover, at least one attorney for DenTek directly worked for Medtech in the

preceding submission for THE DOCTOR’S® NIGHTGUARDTM dental protector by Dental

Concepts (this was prescription to OTC switch) less than a year earlier. There were no others

lawfully in the marketplace. This was not a situation where Hogan & Hartson was providing

regulatory guidance within an already crowded competitive environment.

155. In addition to the assistance given DenTek by Kaplan and Duane, and Medtech’s

legal counsel, DenTek relied on Dr. Mehta to discuss the DenTek dental protector with the FDA.

Dr. Mehta was already established as an expert with the FDA on THE DOCTOR’S®

NIGHTGUARDTM dental protector and compared the two products to assist DenTek in obtaining

approval for DenTek’s device.

H. DENTEK AND DUANE SUCCEED IN SOLICITING KELLY KAPLAN TO TAKE OVER

AS PROJECT MANAGER.

156. No later than late-October or early-November, DenTek and Duane were

successful in recruiting Kaplan. At that time, Kaplan took over the project and continued to

work on bringing DenTek’s competing product to the market.

157. While Duane’s initial consulting agreement terminated on its own provision,

Duane has subsequently entered into a second consulting agreement with DenTek, which is

ongoing and under which Duane is being compensated.

158. After Duane, Kaplan continued to provide to DenTek certain of Medtech’s

confidential and proprietary information relating to THE DOCTOR’S® NIGHTGUARDTM

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product. This assistance violates the terms of the General Release, Ex. B, and explains the

numerous and pervasive similarities between the DenTek dental protector and THE

DOCTOR’S® NIGHTGUARDTM dental protector.

159. Because of the assistance of Duane and Kaplan, DenTek has procured the same

product designers and manufacturers, lawyers, and/or technical advisors as Medtech. Because of

Duane’s and Kaplan’s position within Dental Concepts (now Medtech), both had confidential

and proprietary knowledge about contacts among designers, manufacturers, technical experts,

sales brokers, packaging firms and others.

160. Kaplan relied upon confidential legal advice provided by Medtech’s intellectual

property and regulatory counsel in making various recommendations and determinations

regarding DenTek’s dental protector and marketing that dental protector.

161. Kaplan also relied on the confidential and proprietary strategies of Medtech to

maintain its three-size platform and provide DenTek with an unfair competitive advantage.

162. In disclosing Medtech’s confidential and proprietary information to DenTek,

Duane and Kaplan personally benefited.

I. BY VIRTUE OF MEDTECH’S CONFIDENTIAL AND PROPRIETARY INFORMATION,

DENTEK ELIMINATED THE ORDINARY DEVELOPMENT PROCESS.

163. To Medtech’s disadvantage, DenTek, Duane and Kaplan used Medtech’s

confidential and proprietary to virtually eliminate DenTek’s development process and

competitive entry into the dental protector market.

IV. DENTEK’S DENTAL PROTECTOR INFRINGES ON MEDTECH’S

INTELLECTUAL PROPERTY.

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164. DenTek’s competing product was brought to market in mid-March 2007.

DenTek’s dental protector violates Medtech’s valid patent rights, Medtech’s trademark and

Medtech’s copyrighted material.

A. DENTEK HAS MISAPPROPRIATED THE NIGHTGUARDTM PATENTED

INVENTION.

165. DenTek’s product infringes on Medtech’s valid patent rights relating to dental

protectors. As a result, DenTek has wrongfully and deliberately used Medtech’s patented

product formulation to make DenTek’s product feel like the NIGHTGUARDTM dental protector

and otherwise infringe Medtech’s valid patent rights.

166. DenTek received a Section 510(k) premarket authorization on January 23, 2007

from the FDA for marketing of the DenTek “NightGuard” product, based upon the DenTek

product being “substantially equivalent” to Medtech’s product. Upon information and belief,

DenTek relied upon Medtech’s confidential and proprietary information in making its

submission to the FDA.

167. In its filings with the FDA, DenTek itself, through its legal counsel Hogan &

Hartson, made the following assertion:

The DenTek NightGuard is substantially equivalent to The Doctor’s NightGuard.

The DenTek NightGuard has the same intended uses, indications and principles of

operation, and similar technological characteristics as its predicate device. The

minor technological differences between the DenTek NightGuard and its

predicate device raises no new questions of safety or effectiveness. Thus, the

DenTek NightGuard is substantially equivalent to The Doctor’s NightGuard.

168. Due to DenTek’s sales of a dental protector that deliberately infringes on

Medtech’s valid patent rights discussed above, Medtech has been, and will continue to be,

irreparably harmed by DenTek’s actions as DenTek will be wrongfully selling to Medtech’s

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customers dental protectors that are prohibited from manufacture and sale under Medtech’s valid

patent rights.

B. DENTEK HAS MISAPPROPRIATED THE NIGHTGUARDTM MARK AND TRADE

DRESS.

169. In introducing its competing product, DenTek is also wrongfully benefiting from

the commercial success of THE DOCTOR’S® NIGHTGUARDTM. Medtech has committed

millions of dollars to extensive radio and television advertising in order to support and expand

the brand recognition for THE DOCTOR’S® NIGHTGUARDTM.

170. Furthermore, DenTek’s product attempts to misappropriate the consumer trust

placed in Medtech’s NIGHTGUARDTM brand dental protector by copying the copyrighted

material that is published in Medtech’s “At-Home Fitting Instructions” and packaging.

171. The DenTek package prominently displays the “NIGHTGUARD” mark on the

front cover, with “NIGHT” in bold letters and “GUARD” set off in a contrasting fashion. The

DenTek package also prominently states the following phrase, which uses essentially the same

terminology as Medtech’s featured and copyrighted phrase: “Designed by a Dentist Fit by

You.” A true and correct copy of the packaging for DenTek’s competing product is attached

hereto as Exhibit R and is pictured below:

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172. DenTek’s competing product is displayed adjacent to Medtech’s THE

DOCTOR’S® NIGHTGUARDTM dental protectors in retail stores throughout the country,

including in the New York area.

173. In addition to DenTek’s confusing packaging, DenTek’s advertising campaign

prominently features Medtech’s NIGHTGUARDTM mark and was designed to look and feel

similar to THE DOCTOR’S® NIGHTGUARDTM advertising. Advertisements for the DenTek

dental protector across various advertising mediums consistently use Medtech’s

NIGHTGUARDTM mark and attempt to confuse the consumer about the origin of the product.

174. A DenTek print advertisement began running on June 1, 2007 using a picture of a

man and a shattered-looking background. A true and correct copy of the DenTek print

advertisement is attached hereto as Exhibit S. The print advertisement displays the following

text on the bottom, which includes six separate references to Medtech’s NIGHTGUARDTM

mark:

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175. Television advertising for the DenTek dental protector also prominently features

the NIGHTGUARDTM mark. The television advertisement started airing on May 14, 2007 and

displays the www.DenTekNightGuard.com web address for a substantial portion of the

advertisement’s running. The television advertisement also consistently refers to the product as

“DenTek NightGuard.” Finally, the television advertisement includes another iteration of the

Medtech featured phrase, stating that the DenTek dental protector “was designed by dentists,

with a comfortable custom fit that cushions your teeth while you sleep.” (emphasis added).

176. Radio advertisements also feature Medtech’s NIGHTGUARDTM mark,

consistently referring to the product as the “DenTek NightGuard,” and instructing the radio

listener to visit the www.DenTekNightGuard.com web address for more information about the

infringing product.

177. Not only will retailers and consumers be confused into purchasing DenTek’s

dental protector product when they want Medtech’s NIGHTGUARDTM dental protector, but

DenTek’s product will also eviscerate the goodwill Medtech has spent the last ten years (and

millions of dollars) cultivating for NIGHTGUARDTM.

C. DENTEK HAS MISAPPROPRIATED THE NIGHTGUARDTM

COPYRIGHTED “AT-HOME FITTING INSTRUCTIONS” AND PACKAGING.

178. DenTek’s competing product also includes “At-Home Fitting Instructions,” a true

and correct copy of which is attached hereto as Exhibit T.

179. The DenTek “At-Home Fitting Instructions” closely copies THE DOCTOR’S®

NIGHTGUARDTM “At-Home Fitting Instructions.” Substantial portions of Medtech’s “AtHome Fitting Instructions” are also copied on the packaging of the DenTek dental protector

product. Further, Medtech’s copyrighted phrase, “Designed by a dentist for protection and

comfort. Custom fit by you for convenience,” is copied in pertinent part: “Designed by a dentist;

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fit by you.” The following chart reproduces the text of the two instructions, with the text copied

by DenTek indicated by bold and underlined font:

THE DOCTOR’S® NIGHTGUARDTM

AT-HOME FITTING INSTRUCTIONS

EXHIBIT K

DENTEK NIGHTGUARD

AT-HOME FITTING INSTRUCTIONS

EXHIBIT T

Use Use

The Doctor’s® NightGuardTM is indicated for the

protection against Bruxism or nighttime teeth

grinding. It is intended to reduce damage to teeth

and to prevent the noise associated with bruxing or

teeth grinding.

The Doctor’s® NightGuardTM is similar to the dental

protector recommended by many dentists for

nighttime teeth grinding with one advantage: you fit it

yourself. After fitting, The Doctor’s® NightGuardTM

conforms to your teeth so it will be comfortable. And

it will stay in place through the night. By cushioning

and keeping the teeth apart, The Doctor’s®

NightGuardTM reduces the chances for tooth damage;

and it stops the annoying grinding sound so your sleep

partner will not be disturbed.

DenTek® NightGuard is indicated for the protection

against Bruxism or nighttime teeth grinding. By

cushioning and keeping the teeth apart, DenTek®

NightGuard is intended to reduce damage to teeth and

to prevent the noise associated with bruxing or teeth

grinding.

DenTek® NightGuard is similar to the dental

protector recommended by many dentists for

nighttime teeth grinding. After fitting, DenTek®

NightGuard conforms to your teeth so it is

comfortable to wear and stays in your mouth all night.

Description Description

The Doctor’s® NightGuardTM is a moldable dental

protector, composed of a soft formable upper material

and a hard base. This patented, 2-layered device safely

and effectively prevents the noise associated with

grinding while cushioning the teeth. When heated by

water and then briefly cooled, the upper layer can be

molded to fit comfortably around your upper teeth,

forming a cushion. The hard base prevents bitethrough by consumers with moderate or severe

bruxing/grinding. The life of your dental protector

will vary based on the force of your teeth grinding.

The average dental protector should last six months

or more.

DenTek® NightGuard is a moldable dental protector

specially designed with two materials:

 The blue, formable material, when

heated, molds to your upper molars, front teeth,

and most of the gum line for optimal retention.

 The harder base material cushions

your teeth and prevents bite through from

bruxing/grinding.

The life of your custom fit dental protector will vary

based on the force of your teeth grinding. The

average dental protector should last approximately six

months or more.

For Best Results For Best Results

Read and follow instructions BEFORE and DURING

custom fitting the dental protector. The dental

protector can be fitted on the upper or lower teeth, but

upper is preferred.

Read and follow instructions BEFORE and DURING

custom fitting the dental protector. The dental

protector should be fitted to the upper teeth.

If you need additional assistance, visit our website, or

call our customer service department between 8am and

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5pm eastern standard time and we will guide you

through the fitting process.

www.denteknightguard.com

1-800-4DENTEK

What You Need to Begin What You Need to Begin

 A cup of cold water

 A pot to boil water

 A kitchen fork or spoon

 A mirror

 A clock with a second hand to time

fitting steps in seconds.

 A cup of room temperature water

 A pot of boiling water

 A metal kitchen spoon

 A timer

Test Fitting Test Fitting

As soon as you remove the dental protector from the

package, and before you begin boiling, conduct a “test

fitting.”

1. Position Doctor’s® NightGuardTM in

your mouth to determine if you have properly

chosen the small, medium or large size. You

will know the sizing is correct if your teeth fit

comfortably into the channel of the dental

protector and if the arms of the U shape reach

only to the end of your last molar.

2. If the arch (U-shape) of the dental

protector is too narrow or too wide to fit the

arch of your mouth, the dental protector can

be altered during the final fitting.

3. If the length of the dental protector

extends beyond your back molars in the test

fitting, the dental protector can be shortened by

using a single-edge razor blade or a sharp

knife.

Before you begin boiling, conduct a “test fitting.”

1. Position DenTek® NightGuard in

your mouth and bite down. If the arch (Ushape) is too wide or too narrow, squeeze or

stretch it to align with the arch of your mouth

during the final fitting.

2. If the length of the dental protector

extends beyond your last molar and feels

uncomfortable, use scissors to cut it along the

trim guides. Start at the first line from the end

and test fit it again. If that still is not

comfortable, cut it again at the second trim line,

remembering that it’s best if all teeth touch the

dental protector. Continue this until the dental

protector feels comfortable and all teeth are

cushioned. The optimal fit is when all teeth are

properly centered and resting on the dental

protector.

Final Fitting Final Fitting

After completing the test fitting, you are now ready

to custom fit the dental protector.

Fill a pot with approximately three

inches of water. Boil water until you see a

rolling boil and bubbles. Let the water boil for

one minute before inserting the dental protector

into the water.

2. Submerge the dental protector into

the boiling water for 60 seconds.

3. Using a fork or spoon, remove the

dental protector from the boiling water and

After completing the test fitting, you are now ready

to custom fit DenTek® NightGuard. Make sure you

have a cup of room temperature water ready for cooling.

1. Fill a pot with approximately three

inches of water. Boil water until you see a

rolling boil with bubbles. Remove the pot from

the heating element and let rest for one minute.

2. Submerge the dental protector face

down into hot water for 25 seconds.

3. Remove dental protector with a

metal spoon and submerge into cup of room

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submerge it into the cup of cold water for one

second to remove the heat from the dental

protector.

4. Position the dental protector

comfortably into your mouth. You can widen

or narrow the dental protector at this point in

the process by up to 1⁄2 inch.

5. Once in place, firmly bite down into

the dental protector.

6. Press in along the gum line using

equal amounts of pressure on both sides of

the “U” shape from the front of the dental

protector to the rear molars. Be sure to use

your fingers to mold the soft impression

material up and around the teeth.

7. Suck in to remove excess moisture

and create the suction that will allow the dental

protector to stay comfortably in place on your

upper teeth.

8. Once you feel you have attained a

comfortable fit, remove the dental protector and

place into the cup of cold water for another 30

second to “set” the mold.

temperature water for one second to reduce

the heat before fitting.

4. Position the dental protector in your

mouth, aligning it with your teeth, so that all of

your teeth rest on the dental protector. You may

need to squeeze or stretch the arch of the dental

protector to align with the arch of your mouth.

5. Once in place, bite down firmly and

suck in to remove excess moisture. Using your

fingers, press in along the gum line under your

lip with equal amounts of pressure on both

sides of the “U” from the front to the rear

teeth, molding the soft blue material up and

around your teeth and gum line.

If you did not get a good fit the first time, repeat the

boiling process one more time starting at Step 1 above.

After the second try, the material loses retention and you

will need to follow the instructions for a replacement

dental protector.

Storage and Maintenance Storage and Maintenance

Proper care of your dental protector will extend its life.

 After each use, simply rinse the

dental protector in cool water or mouth

wash.

 Store The Doctor’s® NightGuardTM

in the container provided when not in use.

Proper care of your DenTek® NightGuard will

extend its life.

 After each use, rinse the dental

protector in cool water or mouthwash.

Never use hot water on your dental proctor as it

might lose its shape.

 Store in the hygienic storage

container when not in use.

Warnings Warnings

Do not use:

 If you are under 18 years of age.

 If you wear braces, dentures, or

other dental products.

 If you can wiggle any of your teeth.

 If your dentist has told you that you

have TMJ.

 If you have any tooth or jaw pain or

pain with bruxing or tooth grinding.

 As an athletic mouth guard.

Product does not absorb shock.

 For more than three months without

Do not use:

 If you are under 18 years of age.

 If you wear braces, dentures, or

other dental appliances.

 If you can wiggle any of your teeth.

 If your dentist has told you that you

have TMJ.

 If you have any tooth or jaw pain or

pain with bruxing or tooth grinding.

 As an athletic mouth guard.

Product does not absorb shock.

 For more than three months without

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consulting your dentist.

Ask a Dentist Before Use if You Have:

 Loose fillings, loose caps or cavities

with no fillings.

 Clicking of your jaw.

 Jaw pain, teeth pain, face pain, or

have a hard time chewing.

 Two or more missing teeth.

 Mouth sores.

 Gum disease or bleeding gums.

 Serious breathing, respiratory or

other health problems.

When Using This Product:

 See your dentist every six months.

Stop Use and Ask a Dentist if:

 Your same symptoms last even after

several weeks of use.

 The product easily falls out of your

mouth.

 The product causes you to gag or

feels uncomfortable.

 You have bleeding gums, soreness,

or other reaction inside your mouth.

 You notice new symptoms (jaw

pain, teeth pain, ear pain, headache, neck

stiffness, or joint clicking) because of the

product.

 You have loose teeth or a change in

your bite that lasts more than a few minutes

after taking product out.

consulting your dentist.

Ask a dentist before use if you have:

 Loose fillings, loose caps or cavities

with no fillings.

 Clicking of your jaw.

 Jaw pain, teeth pain, face pain, or

have a hard time chewing.

 Two or more missing teeth.

 Mouth sores.

 Gum disease or bleeding gums.

 Serious breathing, respiratory other

health problems.

When using this product:

 See your dentist every six months.

Stop use and ask a dentist if:

 Your same symptoms last even after

several weeks of use.

 The product easily falls out of your

mouth.

 The product causes you to gag or

feels uncomfortable.

 You have bleeding gums, soreness,

or other reaction inside your mouth.

 You notice new symptoms (jaw

pain, teeth pain, ear pain, headache, neck

stiffness, or joint clicking) because of the

product.

 You have loose teeth or a change in

your bite that lasts more than a few minutes

after taking the product out.

V. DENTEK’S, DUANE’S, AND KAPLAN’S ACTIONS ARE HARMFUL TO

MEDTECH.

180. DenTek’s actions of infringing upon Medtech’s NIGHTGUARDTM trademark,

copyrights, and patent rights are willful and deliberate, and have caused and will continue to

cause damage and irreparable injury to Medtech.

181. Duane’s and Kaplan’s actions in providing DenTek with Medtech’s proprietary

and confidential information have caused, and will continue to cause, damage and irreparable

injury to Medtech. DenTek’s infringing product was quickly brought to market because of

proprietary information unlawfully provided to DenTek by Duane and Kaplan.

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182. DenTek’s use of Medtech’s proprietary and confidential information did not

merely provide it with short-term development cost savings. Rather, DenTek’s quick market

entry allowed it to gain coveted shelf space with the largest retailer which is or becomes a long

term asset of great value, to the detriment of Medtech.

183. Medtech has already lost sales and revenues as confused customers bought

DenTek’s product when they intended to buy Medtech’s product. At each of the four

Information Resources Inc. (“IRI”) tracked key accounts, retail sales of THE DOCTOR'S®

NIGHTGUARDTM have declined significantly (approximately 65%).

184. At the largest retailer—where DenTek made its initial headway into the market

based on the inside information provided by Duane and Kaplan—sales of the THE DOCTOR'S®

NIGHTGUARDTM have declined severely (approximately 70%).

185. DenTek’s entry has not caused any growth in category volume. Instead, a

reallocation of existing volume from Medtech to DenTek has taken place.

186. DenTek’s conduct will continue to damage Medtech’s ability to maintain its hardwon brand recognition and reputation for high-quality products in the over-the-counter dental

protector category. Further damage and irreparable injury will result if DenTek is allowed to

continue to violate Medtech's rights and deceive consumers.

187. Medtech has spent considerable time, effort, and money in gaining valuable shelf

space for its product in retail outlets. The loyalty of these retailers, and the continued availability

of the shelf space, is seriously threatened by DenTek’s conduct and the resulting consumer

confusion. Once shelf space is lost it is essentially impossible to regain. DenTek’s deliberate

use of its confusingly designed and marketed products to capture Medtech’s shelf space will

cause irreparable injury to Medtech.

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188. More importantly, DenTek’s conduct will damage Medtech’s ability to maintain

its brand recognition in the dental protector category due to DenTek’s deliberately deceptive

behavior. If DenTek floods the market with its infringing and confusing product, it will

undermine Medtech’s efforts to continue to grow its brand, maintain its reputation for highquality products, and establish greater success.

189. DenTek’s conduct is all the more culpable when measured against the trademarks

used by competitors in the dental protector category. A survey of the trademarks used by these

competitors shows several non-infringing options available to companies that wish to enter this

market, such as “SLEEP RIGHT SELECTTM,” “VERSACRYLTM,” “REST ASSUREDTM,” and

“STRESSGARDTM.”

190. DenTek’s deliberate acts constitute unfair competition under the Lanham Act, 15

U.S.C. § 1125(a); patent infringement under 35 U.S.C. § 271; copyright infringement under 17

U.S.C. § 501; conduct in violation of the New York Act for Consumer Protection, NY Gen. Bus.

Section 349(h); and violations of related common-law rights including breach of contract,

tortuous interference with contract, civil conspiracy and misappropriation of trade secrets.

191. Medtech seeks temporary and permanent injunctive relief to halt DenTek’s

deliberate and wrongful conduct and an award of compensatory and punitive damages, as well as

attorneys' fees and expenses, for DenTek’s willful and wanton conduct.

COUNT I

PATENT INFRINGEMENT

(AGAINST DENTEK)

192. Medtech incorporates the allegations contained in Paragraphs 1-191 above as if

fully set forth herein.

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193. Medtech is the owner by assignment of the ’051 Patent. DenTek manufactures,

makes, has made, uses, assembles, sells and/or offers for sale an OTC bruxism device that

infringes one or more claims in the ’051 Patent, literally and/or under the doctrine of equivalents,

and/or induces or contributes to the infringement of one or more claims in the ’051 Patent by

others, including but not limited to retailers and consumers who buy DenTek’s product.

194. DenTek’s actions are a violation of 35 U.S.C. § 271.

195. DenTek’s infringing actions are willful and deliberate, and Medtech is entitled to

treble damages pursuant to 35 U.S.C. § 284 and attorneys’ fees pursuant to 35 U.S.C. § 285, this

being an exceptional case.

196. DenTek’s infringement has damaged Medtech in an amount to be determined at

trial.

197. DenTek’s infringement has caused and, unless restrained by this Court, will

continue to cause Medtech irreparable injury. Medtech has no adequate remedy at law for

DenTek’s infringement.

COUNT II

LANHAM ACT - UNFAIR COMPETITION/USE OF FALSE DESIGNATION IN

INTERSTATE COMMERCE

(AGAINST DENTEK)

198. Medtech incorporates the allegations contained in Paragraphs 1-197 above as if

fully set out herein.

199. Notwithstanding Medtech’s well-known and prior-established rights to the

NIGHTGUARDTM mark, DenTek has caused dental protector goods to enter into interstate

commerce using the designation and representation “NIGHTGUARD” connected therewith.

200. DenTek’s use of the mark “NIGHTGUARD” is a false designation of origin

which is likely to cause confusion, to cause mistake, and to deceive as to the affiliation,

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connection or association of Defendant with Plaintiff, and as to the origin, sponsorship, or

approval of DenTek’s dental protector by Medtech.

201. DenTek’s acts are in violation of 15 U.S.C. § 1125(a), in that DenTek has used in

connection with goods and services a false designation of origin, a false or misleading

description in order to cause mistake and to deceive as to the affiliation, connection, or

association of DenTek’s goods with Medtech, and as to the origin, sponsorship, and approval of

DenTek’s goods, services, and commercial activities by Medtech.

202. As a result of DenTek’s infringing conduct, Medtech has been injured, and likely

will continue to be injured as to its goodwill and the value of its NIGHTGUARDTM mark.

203. DenTek’s infringing actions are willful and deliberate, and Medtech is entitled to

attorneys’ fees pursuant to 15 U.S.C. § 1117.

204. DenTek’s infringing conduct has damaged Medtech in an amount to be

determined at trial, including lost sales, revenues, and profits.

205. DenTek’s infringing conduct has caused and, unless restrained by this Court, will

continue to cause Medtech irreparable injury. Medtech has no adequate remedy at law for

DenTek’s infringement.

COUNT III

COPYRIGHT INFRINGEMENT

(AGAINST DENTEK)

206. Medtech incorporates the allegations contained in Paragraphs 1-205 above as if

fully set out herein.

207. DenTek has copied substantial portions of Medtech’s copyrighted material, as

identified in the Copyright Registration.

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208. DenTek’s conduct infringes upon and violates the exclusive rights belonging to

Medtech as owner of the work identified in the Copyright Registration, including, without

limitation, Medtech’s rights under 17 U.S.C. § 106.

209. DenTek has willfully engaged in, and is willfully engaging in, the acts

complained of with oppression, fraud, and malice, and in conscious disregard of the rights of

Medtech. DenTek’s infringing actions are willful and deliberate, and Medtech is entitled to

attorneys’ fees and costs pursuant to 17 U.S.C. § 505.

210. DenTek’s infringing conduct has damaged Medtech in an amount to be

determined at trial. DenTek also has realized and continues to realize profits and other benefits

belonging to Medtech. Accordingly, Medtech seeks an award of damages and costs pursuant to

17 U.S.C. §§ 504 and 505.

211. DenTek’s infringing conduct has caused and, unless restrained by this Court, will

continue to cause Medtech irreparable injury. Medtech has no adequate remedy at law for

DenTek’s infringement.

COUNT IV

COMMON LAW - UNFAIR COMPETITION

(AGAINST DENTEK)

212. Medtech incorporates the allegations contained in Paragraphs 1-211 above as if

fully set out herein.

213. By misappropriating the commercial advantage gained by Medtech in the

NIGHTGUARDTMv trademark, the Copyright Registration, and the ’051 Patent, DenTek has

competed unfairly in violation of the common law of New York, as preserved by N.Y. Gen. Bus.

Law § 360-O.

214. DenTek has acted in bad faith.

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215. DenTek’s infringing actions are willful and deliberate.

216. DenTek’s conduct has damaged Medtech in an amount to be determined at trial.

217. DenTek’s conduct has caused and, unless restrained by this Court, will continue

to cause Medtech irreparable injury. Medtech has no adequate remedy at law for DenTek’s

deliberate infringement.

COUNT V

COMMON LAW - UNJUST ENRICHMENT

(AGAINST DENTEK)

218. Medtech incorporates the allegations contained in Paragraphs 1-217 above as if

fully set out herein.

219. DenTek has received substantial benefits and profited from its unlawful use of

Medtech’s NIGHTGUARDTM trademark, its copyrighted material, and its patented invention, but

has not compensated Medtech for the benefits DenTek received.

220. DenTek’s receipt of the above benefits and profits constitutes unjust enrichment.

221. DenTek’s conduct has damaged Medtech in an amount to be determined at trial.

COUNT VI

VIOLATION OF SECTION 349(H) NEW YORK ACT FOR

CONSUMER PROTECTION FROM DECEPTIVE ACTS AND PRACTICES

(AGAINST DENTEK)

222. Medtech incorporates the allegations contained in Paragraphs 1-221 above as if

fully set out herein.

223. DenTek’s use of Medtech’s NIGHTGUARDTM trademark, its copyrighted

material, and its patented invention constitute efforts to pass off its products as products

originating from Medtech. DenTek’s actions described herein are consumer-oriented and are

misleading in a material way.

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224. DenTek’s use of Medtech’s NIGHTGUARDTM trademark, its copyrighted

material, and its patented invention causes a likelihood of consumer confusion and

misunderstanding as to the source, sponsorship, approval, or association with respect to

DenTek’s products referenced herein.

225. DenTek’s use of Medtech’s NIGHTGUARDTM trademark, its copyrighted

material, and its patented invention constitutes a deceptive trade practice in violation of N.Y.

Gen. Bus. § 349(h).

226. DenTek’s actions are willful and deliberate.

227. DenTek’s conduct has damaged Medtech in an amount to be determined at trial.

228. DenTek’s conduct has caused and, unless restrained by this Court, will continue

to cause Medtech irreparable injury. Medtech has no adequate remedy at law for DenTek’s

infringement and deceptive practices.

COUNT VII

BREACH OF CONTRACT – CONSULTING AGREEMENT AND PROPRIETARY

INFORMATION AND INVENTIONS AGREEMENT

(AGAINST DEFENDANTS CDS AND DUANE)

229. Medtech incorporates the allegations contained in Paragraphs 1-228 above as if

fully set out herein.

230. CDS and Duane executed and agreed to be bound by Consulting Agreement and

the Proprietary Information and Inventions Agreement. The Consulting Agreement included a

valid and enforceable non-compete agreement.

231. CDS and Duane have breached the Consulting Agreement by working for a

company competitive to Dental Concepts; and soliciting, enticing and inducing suppliers and

accounts of Medtech; soliciting, enticing and inducing employees of Medtech.

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232. CDS and Duane have further breached the Consulting Agreement and the

Proprietary Information and Inventions Agreement by using confidential and proprietary

information for personal benefit and providing such information to DenTek.

233. Medtech fully performed and discharged all duties it had under the Consulting

Agreement and the Proprietary Information and Inventions Agreement.

234. As a result of CDS’s and Duane’s breaches of contract, Medtech has been

damaged in an amount to be proven at trial.

235. CDS and Duane agreed that any violation of the Consulting Agreement would

cause Dental Concepts irreparable harm:

(d) Each of the Consultant and Duane acknowledges that the services to be

rendered by it and him are of a special, unique and extraordinary character and, in

connection with such services, it and he will have access to confidential

information vital to the business of the Company and its Affiliates. By reason of

the foregoing, the Consultant and Duane each consents and agrees that, if it or he

violates or threatens to violate any of the provisions of this Section 7 or of Exhibit

A [the Proprietary Information and Inventions Agreement] the Company and/or

its Affiliates would sustain irreparable harm and, therefore, in addition to any

other rights or remedies which the Company and/or its Affiliates may have under

this Agreement or otherwise, the Company and its Affiliates shall be entitled

(without the necessity of posting any bond or security) to an injunction from any

court of competent jurisdiction restraining the Consultant and Duane from

committing or continuing any such violation (or participating therein). (Ex. A at

p. 5, ¶ 7(d).)

236. Further, the Proprietary Information and Inventions Agreement provided:

By reason of the fact that irreparable harm would be sustained by [Dental

Concepts] in the event that there is a breach by [CDS and/or Duane] of any of the

terms, covenants and agreements set forth in this Agreement, in addition to any

other rights that the Company may otherwise have, the Company shall be entitled

to apply to and obtain specific performance and/or injunctive relief against [CDS

and/or Duane] from any court of competent jurisdiction, without making a

showing that monetary damages would be inadequate and without the requirement

of posting any bond or other security whatsoever, in order to enforce or prevent

any breach or threatened breach of any of the terms, covenants and agreements set

forth in this Agreement, and [CDS and/or Duane] will not contest such

application for specific performance and/or injunctive relief. (Ex. C at p. 4, ¶ 8.)

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237. As a result of CDS’s and Duane’s breaches of contract, Medtech has suffered and

continues to suffer irreparable harm.

238. Medtech prays that CDS and Duane be enjoined from further competitive conduct

and that damages be awarded in an amount to be proven at trial.

COUNT VIII

BREACH OF CONTRACT – PROPRIETARY INFORMATION

AND INVENTIONS AGREEMENT

(AGAINST KAPLAN)

239. Medtech incorporates the allegations contained in Paragraphs 1-238 above as if

fully set out herein.

240. Kaplan executed and agreed to be bound by the Proprietary Information and

Inventions Agreement attached as Exhibit D.

241. Kaplan breached the Proprietary Information and Inventions Agreement by

providing confidential and proprietary information to DenTek.

242. Medtech fully performed and discharged all duties it had under the Proprietary

Information and Inventions Agreement.

243. Further, the Kaplan Proprietary Information and Inventions Agreement provided:

By reason of the fact that irreparable harm would be sustained by [Dental

Concepts] in the event that there is a breach by [Kaplan] of any of the terms,

covenants and agreements set forth in this Agreement, in addition to any other

rights that the Company may otherwise have, the Company shall be entitled to

apply to and obtain specific performance and/or injunctive relief against [Kaplan]

from any court of competent jurisdiction, without making a showing that

monetary damages would be inadequate and without the requirement of posting

any bond or other security whatsoever, in order to enforce or prevent any breach

or threatened breach of any of the terms, covenants and agreements set forth in

this Agreement, and [Kaplan] will not contest such application for specific

performance and/or injunctive relief. (Ex. D at p. 4, ¶ 8.)

244. As a result of Kaplan’s breaches of contract, Medtech has suffered and continues

to suffer irreparable harm.

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245. Medtech prays that Kaplan be enjoined from further competitive conduct and that

damages be awarded in an amount to be proven at trial.

COUNT IX

BREACH OF CONTRACT –GENERAL RELEASES

(AGAINST DUANE AND KAPLAN)

246. Medtech incorporates the allegations contained in Paragraphs 1-245 above as if

fully set out herein.

247. Duane and Kaplan had valid agreements, which are enforceable by Medtech, and

which are attached hereto as the General Releases at Exhibits G and H.

248. Under the General Releases, Duane and Kaplan were to maintain the secrecy of

the confidential and proprietary information learned as a result of their positions as Executive

Vice President of Sales and Executive Vice President of Marketing of Dental Concepts

(predecessor in interest to Medtech).

249. All duties and performance required by Dental Concepts/Medtech under the

General Releases have been discharged and fully performed.

250. Duane and Kaplan have breached the General Releases by providing DenTek with

Medtech’s confidential and proprietary information.

251. Medtech has been damaged by Duane’s and Kaplan’s breaches as DenTek has

had unauthorized access to and utilized Medtech’s confidential and proprietary information in

bringing DenTek’s infringing product to the market.

252. Duane’s and Kaplan’s conduct has caused and, unless restrained by this Court,

will continue to cause Medtech irreparable injury. Medtech has no adequate remedy at law for

Duane’s and Kaplan’s breach of contract.

253. Duane’s General Release provided:

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Should there be a violation or attempted or threatened violation of this provision,

the Company may apply for and obtain an injunction to restrain such violation or

attempted or threatened violation, Employee conceding that the loss of such secret

or confidential information cannot reasonably or adequately be compensated in

damages in an action at law, and that the right to said injunction is necessary for

the protection and preservation of the rights of the Company and of any transferee

or assignee hereof to prevent irreparable damage to the Company. Such injunctive

relief shall be in addition to such other rights and remedies as the Company, and

any other permitted transferee or assignee hereof, may have against Employee

arising from any breach hereof on his part. (Ex. G. at p. 3, ¶ 7.)

254. Likewise, Kaplan’s General Release provided that an injunction was necessary in

light of any violation of the General Release:

Should there be a violation or attempted or threatened violation of this provision,

the Company may apply for and obtain an injunction to restrain such violation or

attempted or threatened violation, Employee conceding that the loss of such secret

or confidential information cannot reasonably or adequately be compensated in

damages in an action at law, and that the right to said injunction is necessary for

the protection and preservation of the rights of the Company and of any transferee

or assignee hereof to prevent irreparable damage to the Company. Such injunctive

relief shall be in addition to such other rights and remedies as the Company, and

any other permitted transferee or assignee hereof, may have against Employee

arising from any breach hereof on his part. (Ex. H at p. 3, ¶ 7.)

255. Pursuant to the General Releases, Medtech is “entitled to recover from the

opposite party all reasonable attorney’s fees and costs incurred in connection with” this action to

enforce its rights under the agreement. (Exs. G and H at p. 3 (“Future Legal Action”).)

COUNT X

TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

(AGAINST DENTEK)

256. Medtech incorporates the allegations contained in Paragraphs 1-255 above as if

fully set out herein.

257. Duane and Kaplan had valid agreements, which are enforceable by Medtech, and

which are attached hereto as the Consulting Agreement (Ex. A), the Proprietary Information and

Inventions Agreements (Exs. C and D), and the General Releases (Exs. G and H), under which

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Duane and Kaplan were to maintain the secrecy of the confidential and proprietary information

they had learned as executives of Dental Concepts.

258. DenTek knew or should have known of the valid contracts between Duane and

Dental Concepts/Medtech and Kaplan and Dental Concepts/Medtech.

259. DenTek is a sophisticated entity well aware of the industry practice of securing

confidentiality agreements, as evidenced by its own conduct with Duane, Kaplan and the Tufts

Doctors.

260. Upon information and belief, DenTek procured Duane’s and Kaplan’s breaches of

the aforementioned contracts, as applicable.

261. Medtech has been damaged by Duane’s and Kaplan’s breach as DenTek has

brought its infringing product to the market with the assistance of unauthorized access to

Medtech’s confidential and proprietary information.

262. Duane’s, Kaplan’s and DenTek’s conduct has caused and, unless restrained by

this Court, will continue to cause Medtech irreparable injury. Medtech has no adequate remedy

at law for Duane’s and Kaplan’s breaches of contract and DenTek’s tortious interference with

contractual relations.

COUNT XI

TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

(AGAINST DUANE)

263. Medtech incorporates the allegations contained in Paragraphs 1-262 above as if

fully set out herein.

264. Kaplan had a valid agreement, which was enforceable by Medtech, and which is

attached hereto as the General Release (Ex. H), under which Kaplan was to maintain the secrecy

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of the confidential and proprietary information she had learned as an executive of Dental

Concepts.

265. Duane knew or should have known of the valid contract between Kaplan and

Dental Concepts/Medtech.

266. Duane procured Kaplan’s breach of that contract.

267. Medtech has been damaged by Kaplan’s breach as DenTek has brought its

infringing product to the market with the assistance of unauthorized access to Medtech’s

confidential and proprietary information.

268. Duane’s, Kaplan’s and DenTek’s conduct has caused and, unless restrained by

this Court, will continue to cause Medtech irreparable injury. Medtech has no adequate remedy

at law for Kaplan’s breach of contract and DenTek’s tortious interference with contractual

relations.

COUNT XII

CIVIL CONSPIRACY

(AGAINST ALL DEFENDANTS)

269. Medtech incorporates the allegations contained in Paragraphs 1-268 above as if

fully set out herein.

270. Upon information and belief, DenTek, Duane, CDS, and Kaplan conspired,

agreed, and planned to use Medtech’s confidential and proprietary information in violation of

Duane’s, CDS’s and Kaplan’s valid confidentiality agreements and New York law.

271. Upon information and belief, Duane, CDS, and Kaplan revealed to DenTek

confidential and proprietary information belonging to Medtech, in violation of their

confidentiality agreements, and DenTek used that information in bringing its infringing product

to the market.

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272. Medtech has been damaged as a result of Defendants’ conspiracy.

273. Medtech prays that Defendants be enjoined from further concerted activities

intended and calculated to injure Medtech, and that damages be awarded in an amount to be

proven at trial.

COUNT XIII

TRADE SECRET MISAPPROPRIATION

(AGAINST ALL DEFENDANTS)

274. Medtech incorporates the allegations contained in Paragraphs 1-273 above as if

fully set out herein.

275. Medtech and its predecessor in interest, Dental Concepts, has expended

considerable time, effort, and money developing its trade secrets, including but not limited to

manufacturing cost details, drawings, test data, and other information about the design and

manufacturing process for its dental protectors.

276. Medtech has undertaken efforts to ensure that its trade secrets are kept secret and

not generally known to the public. Its efforts include, but are not limited to, (1) identifying

materials as proprietary and confidential information belonging to Medtech; (2) maintaining

computer files in a password-protected system; (3) requiring Medtech employees to sign an

acknowledgement of a company policy regarding confidential information; (4) selectively

including only those persons within the organization that need to be in the loop on specific

information; and (5) requiring key Medtech employees, vendors, and consultants to sign

confidentiality agreements.

277. Because of their employment and trusted management positions at Medtech,

Duane and Kaplan had access to Medtech’s trade secrets, including but not limited to

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manufacturing cost details, drawings, test data, and other information about the design and

manufacturing process for its dental protectors.

278. Medtech shared this information with Duane and Kaplan, as its exclusive

consultant and employee, subject to the confidentiality agreements that both had signed, and in

which both agreed not to divulge or appropriate to their own use or to the use of others any secret

or confidential information or knowledge obtained by them or disclosed to them during their

employment at Medtech.

279. In addition to the confidentiality agreements executed at the beginning of their

associations, Medtech obtained the General Releases from both Duane and Kaplan at the time of

the acquisition of Dental Concepts and the end of their associations with Dental Concepts and

Medtech.

280. Despite these safeguards, without Medtech’s consent, and in violation of the

common law New York duty Duane and Kaplan owed to Medtech to maintain the secrecy of

Medtech’s trade secrets, Duane and Kaplan used Medtech’s trade secrets in the performance of

their duties at DenTek for their own benefit and disclosed Medtech’s trade secrets to DenTek and

its employees and officers.

281. DenTek had a reason to know and, upon information and belief, did know at

and/or after the time that Duane and Kaplan disclosed Medtech’s trade secrets, and at and/or

after the time DenTek made use of these trade secrets, that these trade secrets came from

Medtech, and that Duane and Kaplan owed a duty to Medtech to maintain their secrecy.

282. As a result of Defendants’ violations, Medtech has suffered damages and

continues to suffer damages as a result of Defendants’ actions.

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283. As a result of Defendants’ violations, Medtech has suffered and continues to

suffer irreparable harm.

COUNT XIV

TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS

RELATIONSHIP/ECONOMIC ADVANTAGE

(AGAINST ALL DEFENDANTS)

284. Medtech incorporates the allegations contained in Paragraphs 1-283 above as if

fully set out herein.

285. Medtech had a business relationship or contemplated contract of economic benefit

with the Tufts Doctors. This business relationship and prospective continued business

relationship was for the Tufts Doctors to provide valuable consulting advice about bruxism and

the efficacies of various protective devices, such as THE DOCTOR’S® NIGHTGUARDTM

brand dental protector.

286. Even though Medtech had a consulting arrangement with the Tufts Doctors that

was confidential, Duane, Kaplan and DenTek all specifically knew of the relationship and

prospective relationship of Medtech with the Tufts Doctors.

287. DenTek, Duane and Kaplan’s actions resulted in the Tufts Doctors’ ceasing to

provide consulting services regarding design of bruxism devices to Medtech. The denial of such

effected services is acts as a continued injury Medtech.

288. Duane, Kaplan and DenTek intentionally interfered with Medtech’s relationship

and prospective continued business relationship with the Tufts Doctors. Defendants acted with

intent to harm Medtech, used confidential and inside information, and did not inform the Tufts

Doctors of the true goals and purposes of the relationship.

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289. Defendants injured Medtech’s relationship with the Tufts Doctors.

JURY DEMAND

Medtech demands a trial by jury of all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Medtech respectfully requests that process issue and be served upon

Defendants, and that the claims in this action be tried and an Order be entered that:

1. Temporarily enjoins DenTek from unfairly competing with Medtech in any

manner whatsoever or from infringing on Medtech’s patent rights, trademark, or copyright, in

particular, from manufacturing, distributing, selling, offering for sale, holding for sale or

advertising any goods utilizing Medtech’s patented technology, Medtech’s NIGHTGUARDTM

mark or any colorable variations thereof, and Medtech’s copyright.

2. Permanently enjoins DenTek from unfairly competing with Medtech in any

manner whatsoever or from infringing on Medtech’s patent rights, trademark, or copyright; in

particular, from manufacturing, distributing, selling, offering for sale, holding for sale or

advertising any goods utilizing Medtech’s patented technology, Medtech’s NIGHTGUARDTM

mark or any colorable variations thereof, and using Medtech’s copyrighted material.

3. Requires DenTek to assign any rights to any pending patent applications for any

bruxism device to Medtech, any such application necessarily having been derived from the

confidential information wrongfully transferred to DenTek and its agents.

4. Requires DenTek to recall from all distribution channels and all retail locations all

products utilizing Medtech’s patented technology, NIGHTGUARDTM mark, copyrighted

material or any colorable variations thereof, and take affirmative steps to dispel such false

impressions that heretofore have been created by its improper use of Medtech’s patented

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technology, NIGHTGUARDTM mark, or colorable imitation thereof and Medtech’s copyrighted

material.

5. Requires DenTek to deliver up for destruction all labels, signs, prints, packages,

advertisements, products, and/or other matter infringing on Medtech’s patent rights or bearing

the unauthorized reproduction or imitation of Medtech’s NIGHTGUARDTM mark, or Medtech’s

copyrighted material, and all means for making such reproductions or imitations pursuant to 15

U.S.C. § 1118 and 17 U.S.C. § 503.

6. Requires DenTek to account for its profits arising from their patent infringement,

trademark infringement, copyright infringement, unfair competition, use of Medtech’s

confidential and proprietary information, and other illegal and deceptive acts.

7. Requires DenTek, Duane and Kaplan to return all confidential and proprietary

information back to Medtech.

8. Enjoins Duane and Kaplan from any further disclosures to DenTek of Medtech’s

confidential and proprietary information, and enjoins any further use of or profit from such

confidential and proprietary information by Duane, CDS, Kaplan and DenTek.

9. Requires DenTek, Duane and Kaplan to identify every employee who possessed

or had access to all information that was improperly taken and used from Medtech.

10. Enjoins Defendant DenTek from being in the dental protector business for the full

two years provided in the Duane and CDS non-compete and further until such time as it is able to

demonstrate that its development of a dental protector does not make use of any confidential and

proprietary information and the trade secrets it stole from Medtech and affords Medtech the

opportunity to recover from the damages inflicted on it to date;

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