UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

_______ 

INNOVATION VENTURES, LLC, 

a Michigan limited liability company, 

 Plaintiff, 

Hon.________________________ 

vs. 

Civ. Action No. _______________

BHELLIOM ENTERPRISES CORP.

a Florida corporation, 

, 

 Defendant. 

JURY TRIAL DEMANDED

MARK A. CANTOR (P32661) 

THOMAS W. CUNNINGHAM (P57899) 

BRIAN C. DOUGHTY (P71652) 

BROOKS KUSHMAN P.C.

1000 Town Center 

Twenty-Second Floor 

Southfield, Michigan 48075 

(248) 358-4400 

 Attorneys for Plaintiff

COMPLAINT 

AND JURY DEMAND

 Plaintiff, Innovation Ventures, LLC, does hereby allege for its Complaint against 

the Defendant as follows: 

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I. THE PARTIES AND JURISDICTION

1. Plaintiff, Innovation Ventures, LLC(hereinafter "Living Essentials"), is a 

Michigan limited liability company, having its principal offices at 38955 Hills Tech Dr., 

Farmington Hills, Michigan 48331. 

2. Upon information and belief, defendant is a Florida corporation with its 

principal place of business at 20423 State Road 7, Suite 275, Boca Raton, Florida 33498. 

Defendant distributes, offers for sale and sells the accused supplement as described herein (see 

paragraphs 14, 25 and 34) in the United States, in the State of Michigan and this District. 

3. This Court has subject matter jurisdiction over the claims herein pursuant 

to 15 U.S.C. §§ 1121, 28 U.S.C. §1331, and 28 U.S.C. § 1338(a) in that this case arises under the 

trademark laws of the United States. 

4. This Court has personal jurisdiction over the Defendant because the 

Defendant is conducting business in the State of Michigan and this District as alleged above, and 

is committing acts of infringement in this District. To the extent not already established on the 

record in hand, the factual contentions of paragraph 4 above are likely to have evidentiary 

support after a reasonable opportunity for further investigation and discovery. 

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II. FACTUAL BACKGROUND

A. Living Essentials and Its Asserted Trademark

5. Living Essentials is a national marketer and distributor of nutritional and 

dietary supplements sold under its many trademarks. 

6. Living Essentials is the current owner of all rights in the 5-HOUR 

ENERGY Trademark used by Living Essentials since at least 2004 as a trademark for use with 

the 5-HOUR ENERGY supplements. 

7. Living Essentials has used the 5-HOUR ENERGY Trademark as its 

trademark continuously since at least 2004 to the present. 

8. The 5-HOUR ENERGY Trademark symbolizes business goodwill of 

Living Essentials, and is an intangible asset of substantial commercial value. 

9. Since 2004, long prior to the acts of the Defendant herein alleged, Living 

Essentials and its authorized distributors, dealers, and licensees have used the 5-HOUR 

ENERGY Trademark in connection with its supplements, including in connection with 

promotion, marketing and advertising of supplements, for sale in the United States, including this 

District. These products are hereinafter collectively referred to as the "5-HOUR ENERGY 

Products." 

10. The total sales of the 5-HOUR ENERGY Products since 2004 have 

amounted to well over $200 million dollars. 

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11. As a result of such continuous use and extensive sales, advertising and 

promotion of the 5-HOUR ENERGY Trademark by Living Essentials, its authorized dealers, 

licensees, and distributors, the marks and products associated with the 5-HOUR ENERGY 

Trademark enjoys recognition and notoriety in the United States, and is recognized by the public 

as emanating from Living Essentials. 

12. The 5-HOUR ENERGY Trademark is a famous mark and represents 

property of great value and goodwill to Living Essentials. 

B. Defendant's Activities

13. Defendant advertises a dietary supplement under the names 8-HR 

ENERGY and 8-HOUR ENERGY (collectively referred to herein as 8-HOUR ENERGY.) 

14. Defendant's 8-HOUR ENERGY product is a competing energy product 

that it markets and sells in interstate commerce throughout the United States. 

15. Defendant advertises its 8-HOUR ENERGY product in commercial 

advertising across the United States. 

16. Rather than engage in fair competition in the marketplace, however, and 

allow consumers to exercise their own choice, defendant has resorted to trademark infringement 

and false advertising to attempt to promote its 8-HOUR ENERGY product. 

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17. Subsequent to Living Essentials' use of the 5-HOUR ENERGY Trademark 

as above alleged, and with actual knowledge of Living Essentials' use of the 5HOUR ENERGY® 

Trademark, and with the intent to misrepresent the source of defendant's goods, defendant 

copied, adopted and is using the confusingly similar 8-HOUR ENERGY phrases in connection 

with the advertising, offering for sale and sale of supplements in the United States, in the State of 

Michigan, and this District. A photograph of Defendant' s advertising is illustrated below: 

18. 

19. 

20. 

21. 

22. 

23. 

24. 

18. Defendant has no consent, license, approval or other authorization to use 

the 5-HOUR ENERGY Trademark, or confusingly similar variations thereof, in connection with 

its products. 

19. Defendant' s use of the famous 5-HOUR ENERGY Trademark as alleged 

in the foregoing paragraphs clearly shows the willful intent of the Defendant to misrepresent the 

source of Defendant's goods so as to cause confusion, mistake or to deceive as to Defendant's 

connection or association with Living Essentials. 

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20. In addition to misrepresenting the source of its goods, defendant also 

resorted to false advertising to promote its 8-HOUR ENERGY products to discourage customers 

from purchasing Living Essentials’ products. 

21. The 8-HOUR ENERGY names, are themselves false and misleading 

because they state, or at least imply, that defendant's 8-HOUR ENERGY products provide a 

sustained level of energy for eight (8) hours to the consumer, and have no secondary meaning. 

22. In additional advertisements as shown above, defendant claims that its 

products "deliver a full 8 hours of ENERGY!" and shows a graph that represents to the consumer 

that its products provide energy for ten (10) hours, and that competing products crash after two 

(2) hours. 

23. Upon information and belief, defendant's advertising of its "8-HOUR 

ENERGY" products, is false and misleading because these products do not provide eight (8) 

hours of sustained energy to the consumer. 

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III. COUNT I 

FALSE DESIGNATION OF ORIGIN OR SPONSORSHIP, 

FALSE ADVERTISING, TRADEMARK AND TRADE DRESS 

INFRINGEMENT UNDER 15 U.S.C. § 1125(a)

24. The allegations of the previous paragraphs are incorporated herein by 

reference. 

25. Defendant has knowingly used and continues to use in commerce the 8-

HOUR ENERGY names, that are confusingly similar and/or colorable imitations of Living 

Essentials' 5-HOUR ENERGY Trademark, in connection with the products and services that the 

defendant manufactures, advertises, promotes, and sells. Defendant has used colorable 

imitations of the 5-HOUR ENERGY Trademark knowing that the names will cause confusion 

with Living Essentials' 5-HOUR ENERGY 2-ounce shot. 

26. Defendant's use of 8-HOUR ENERGY alleged above is likely to confuse, 

mislead, or deceive customers, purchasers, and members of the general public as to the origin, 

source, sponsorship, or affiliation of defendant's products and services, and is likely to cause such 

people to believe in error that defendant's products and services have been authorized, sponsored, 

approved, endorsed, or licensed by Living Essentials or that the defendant is in some way 

affiliated with Living Essentials or with the 5 HOUR ENERGY brand. 

27. Defendant's acts constitute false and misleading descriptions, false 

advertising, and false designations of the origin and/or sponsorship of defendant's goods, and 

constitute a violation of 15 U.S.C. § 1125(a). 

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28. By reason of defendant's actions, Living Essentials has suffered irreparable 

harm to the valuable 5-HOUR ENERGY Trademark. Unless defendant is restrained from its 

actions, Living Essentials will continue to be irreparably harmed. 

29. Living Essentials has no remedy at law that will compensate for the 

continued and irreparable harm that will be caused if defendant's acts are allowed to continue. 

30. As a direct and proximate result of defendant's conduct, Living Essentials 

has suffered damages to its valuable 5-HOUR ENERGY Trademark and other damages in an 

amount to be proved at trial. 

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IV. COUNT II 

COMMON LAW TRADEMARK INFRINGEMENT

31. The allegations of the foregoing paragraphs are incorporated herein by 

reference. 

32. Living Essentials was the first to use the 5-HOUR ENERGY Trademark 

or any mark similar thereto in association with the sale of any product and service. As a result of 

the continued sale by Living Essentials of 5-HOUR ENERGY Products bearing the 5-HOUR 

ENERGY Trademark since approximately 2004, the 5-HOUR ENERGY Trademark has become 

widely known and Living Essentials has become identified in the public mind as the 

manufacturer and/or licensor of the products to which the 5-HOUR ENERGY Trademark is 

applied. 

33. As a result of the experience, care, and service of Living Essentials in 

producing 5-HOUR ENERGY Products, 5-HOUR ENERGY Products have become widely 

known and have acquired a worldwide reputation for quality, durability, and performance. 

Moreover, the 5-HOUR ENERGY Trademark has become associated with 5-HOUR ENERGY 

Products, and have come to symbolize the reputation for quality and excellence of 5-HOUR 

ENERGY Products. As such, the 5-HOUR ENERGY Trademark has become distinctive. 

34. Defendant, with knowledge of and with intentional disregard of Living 

Essentials' rights, continues to advertise, promote, and sell products and services using confusing 

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imitations the 5-HOUR ENERGY Trademark. Such acts by the defendant have caused and 

continue to cause confusion as to the source and/or sponsorship of defendant's products. 

35. Defendant's acts constitute willful infringement of Living Essentials 

exclusive rights in the 5-HOUR ENERGY Trademark, in violation of the common law. By 

reason of defendants' actions, Living Essentials has suffered irreparable harm to the valuable 5-

HOUR ENERGY Trademark. Unless defendant is restrained from further infringement of the 5-

HOUR ENERGY Trademark, Living Essentials will continue to suffer irreparable harm. 

36. Living Essentials has no remedy at law that will adequately compensate it 

for the irreparable harm that it will suffer if defendant's conduct is allowed to continue. 

37. As a direct and proximate result of defendant's conduct, Living Essentials 

has suffered and will continue to suffer damages to the valuable 5-HOUR ENERGY Trademark, 

damage and injury to its business, substantial loss of revenue and profit, and will continue to 

suffer other damages in an amount to be proved at trial. 

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V. COUNT III 

FALSE ADVERTISING BASED ON FALSE 

AND/OR MISLEADING ADVERTISING STATEMENTS

38. The allegations of the foregoing paragraphs are incorporated herein by 

reference. 

39. In defendant's advertisements, defendant, in active commercial 

competition with Living Essentials, has made false and/or misleading statements of fact 

concerning its 8-HOUR ENERGY product. 

40. These statements are made in interstate commerce in connection with 

defendants’ products. 

41. These statements are made in promotion of defendant’s products and 

falsely represent the nature of quality of defendant’s products. 

42. Defendant has made false or misleading statements with knowledge of 

their falsity and/or misleading character, and/or willfully and with reckless disregard for their 

falsity or misleading character. 

43. Defendant's statements have confused and deceived a segment of their 

intended audience. 

44. Defendant's statements are material as they relate to customers' purchasing 

decisions. 

45. Defendant caused and directed its false or misleading statements to enter 

interstate commerce. 

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46. Living Essentials has been and will continue to be injured by defendant's 

false and/or misleading statements. 

47. Living Essentials' damages includes direct diversion of sales from Living 

Essentials to defendant or by a lessening of the good will associated with its products. 

48. Defendant's false and/or misleading statements violate the Lanham Act, 15 

U.S.C. § 1125. 

49. Living Essentials is irreparably harmed, has no adequate remedy at law 

and is entitled to injunctive relief. 

50. Defendant's intentional and willful violations entitle Living Essentials to 

recover three times its actual damages in an amount to be determined at trial pursuant to 15 

U.S.C. § 1117. 

 

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VI. DEMAND FOR RELIEF

 WHEREFORE, Living Essentials demands entry of a judgment granting relief 

against the Defendants as follows: 

 A. A determination that the defendant has violated 15 U.S.C. § 1125(a), that 

Living Essentials has been damaged by such violations, and that the defendant is liable to Living 

Essentials for such violations; 

 B. A determination that the defendant has committed common law trademark 

infringement, that Living Essentials has been damaged by such infringement, and that defendant 

is liable to Living Essentials for common law trademark infringement; 

 C. A determination that defendant is liable to Living Essentials for false 

advertising; 

 D. A determination that this case is "exceptional," in the sense of 15 U.S.C. § 

1117(a); 

 E. Under all claims for relief, that injunction be temporarily, preliminarily, 

and permanently issued enjoining defendant, its officers, employees, agents, successors and 

assigns, and all those in active concert and participation with them, and each of them who 

receives notice directly or otherwise of such injunctions, from: 

(1) using 8-HOUR ENERGY and/or 8-HR ENERGY on its 

supplements; 

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(2) imitating, copying, or making any unauthorized use of the 5-

HOUR ENERGY Trademark and Packaging Trade Dress; 

(3) importing, manufacturing, producing, distributing, circulating, 

selling, offering for sale, advertising, promoting or displaying any service or product using any 

simulation, reproduction, counterfeit, copy, or colorable imitation of either the 5-HOUR 

ENERGY Trademark; 

(4) using any simulation, reproduction, counterfeit, copy or colorable 

imitation of the 5-HOUR ENERGY Trademark in connection with the promotion, advertisement, 

display, sale, offer for sale, manufacture, production, circulation or distribution of any product or 

service; 

(5) using any false designation of origin or false description 

(including, without limitation, any letters, symbols, or designs constituting the 5-HOUR 

ENERGY Trademark) or performing any act, which can, or is likely to, lead members of the 

trade or public to believe that any service or product manufactured, distributed or sold by 

Defendants are in any manner associated or connected with Living Essentials, the 5-HOUR 

ENERGY brand, or the 5-HOUR ENERGY Trademark, or is sold, manufactured, licensed, 

sponsored, approved or authorized by Living Essentials. 

(6) falsely advertising the efficacy of its products, or performing any 

act that would mislead consumers about the efficacy of defendants' products. 

 F. For an order directing that defendants deliver for destruction all products, 

labels, tags, signs, prints, packages, videos, and advertisements in their possession or under their 

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control, bearing or using the 5-HOUR ENERGY Trademark or any simulation, reproduction, 

counterfeit, copy or colorable imitation thereof, and all plates, molds, matrices and other means 

of making the same, pursuant to 15 U.S.C. § 1118; 

 G. For an order directing such other relief as the Court may deem appropriate 

to prevent the trade and public from deriving the erroneous impression that any service or 

product manufactured, sold or otherwise circulated or promoted by defendants are authorized by 

Living Essentials or related in any way to 5-HOUR ENERGY Products; 

 H. For an Order directing the defendants and their agents, employees, 

servants, attorneys, successors, and assigns, and all others in privity or acting in concert 

therewith, to file with this Court, and serve upon Living Essentials' counsel within thirty (30) 

days after entry of such judgment, a written report under oath, setting forth in detail the manner 

and form in which they have complied with such judgment; 

 I. An Order permitting Living Essentials, and/or auditors of Living 

Essentials, to audit and inspect the books, records, and premises of the defendants and related 

entities for a period of six (6) months after entry of final relief in this matter, to determine the 

scope of the defendant's past use of Living Essentials' intellectual property, including all 

manufacturing, distribution, and sales of products bearing the 5-HOUR ENERGY Trademark, as 

well as the defendant's compliance with the orders of this Court; 

 J. For an award of Living Essentials' damages trebled or, alternatively, an 

award of defendant' s wrongful profits trebled, whichever is greater, plus Living Essentials' costs 

and attorney's fees, pursuant to 15 U.S.C. § 1117; 

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 K. For an award of Living Essentials' damages arising out of defendant's acts; 

 L. For an order requiring defendant to file with the Court and provide to 

Living Essentials an accounting of all sales and profits realized by Defendants through the use of 

the 5-HOUR ENERGY Trademark and any counterfeits thereof; 

 M. For an award of interest, including pre-judgment interest on the foregoing 

sums; 

 N. For such other and further relief as the Court may deem just and 

appropriate. 

VII. DEMAND FOR JURY

 Plaintiff, Living Essentials, demands a trial by jury for all issues so triable. 

 Respectfully submitted, 

 By: /s/ Thomas W. Cunningham

 MARK A. CANTOR (P32661) 

 THOMAS W. CUNNINGHAM (P57899) 

 BRIAN C. DOUGHTY (P71652) 

 1000 Town Center, Twenty-Second Floor 

 Southfield, Michigan 48075 

 (248) 358-4400; (248) 358-3351 (fax) 

 E-mail: mantor@brookskushman.com 

 mlorelli@brookskushman.com 

 tcunningham@brookskushman.com 

 bdoughty@brookskushman.com 

Dated: September 24, 2009 

 Attorneys for Plaintiff 

 

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