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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

ORTHO-TAIN, INC., a corporation, )

Plaintiff, )

vs. )

COLORADO VIVOS THERAPEUTICS, INC., ) Case No. 1:20 cv 4301

VIVOS THERAPEUTICS, INC., )

BENCO DENTAL SUPPLY CO., BRIAN KRAFT,)

BEN MIRAGLIA, MARK MUSSO and )

KIRK HUNTSMAN, )

Defendants )

COMPLAINT AT LAW

NOW COMES plaintiff, Ortho-Tain, Inc., through counsel, and for its Complaint against 

defendants alleges as follows:

PARTIES

1. Ortho-Tain, Inc. (“Ortho-Tain”) is a corporation registered under the laws of Puerto 

Rico, with a principal place of business in Toa, Alta, Puerto Rico. 

2. Ortho-Tain is in the business of manufacturing and selling pre-formed, removable

orthodontic appliances used in the treatment of a variety of medical conditions, including 

malocclusions, narrow arches, underdeveloped airways and their associated health issues, 

including sleep disordered breathing. (“HealthyStart® System appliances”)

3. Through its founder, Dr. Earl Bergersen, Ortho-Tain has a 53-year history as an 

innovator and developer of treatment modalities to address the underlying root causes of pediatric 

sleep, breathing, and airway deficiencies by promoting and guiding growth of the pediatric patient, 

through the use of oral appliances, and addressing improper oral habits. 

4. Dr. Bergersen and Ortho-Tain have approximately 511 patents registered for such 

oral appliances, and Ortho-Tain’s proprietary system, including its HealthyStart® System, has 

successfully helped with the treatment of more than four (4) million patients to date.

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5. Ortho-Tain, through its HealthyStart® division, is also a service provider which 

trains dentists, pediatric dentists, and orthodontists (collectively “dental professionals”) in their 

use of HealthyStart® System appliances and related Ortho-Tain products comprising the 

HealthyStart® System. Through the HealthyStart® System’s treatment plan review service, dental 

professionals are able to obtain case-specific feedback, product and treatment option information 

and recommendations for using Ortho-Tain’s oral appliances.

6. Colorado Vivos Therapeutics, Inc. (“Colorado Vivos”) is a corporation organized 

under the laws of Colorado and with a principal place of business situated at 9137 Ridgeline Blvd., 

Suite 135, Highlands Ranch, Colorado.

7. Defendant Colorado Vivos was originally incorporated on or about January 9, 2017

under the name “Corrective BioTechnologies, Inc.” and thereafter submitted articles of 

amendment with the Colorado Secretary of State on at least three occasions so as to change its 

corporate name. On or about February 2, 2018, this defendant’s corporation’s name was changed 

to “Vivos BioTechnologies, Inc.” On or about March 5, 2018 this defendant’s corporation’s name

was changed to “Vivos Therapeutics, Inc” and on or about April 11, 2019 this defendant’s

corporation’s name was changed to “Colorado Vivos Therapeutics, Inc.”

8. Defendant Vivos Therapeutics, Inc. is a corporation organized under the laws of 

Wyoming and with a principal place of business situated at 9137 Ridgeline Blvd., Suite 135, 

Highlands, Colorado. This defendant was originally incorporated on or about July 7, 2016 under 

the name “Corrective Biotechnologies, Inc.” It filed amendments with the Wyoming Secretary of 

State’s offices, on or about September 6, 2016 to effectuate a name change to “Vivos 

Biotechnologies, Inc.” On or about March 2, 2018, this defendant filed another amendment so as 

to change its corporate name to “Vivos Therapeutics, Inc.”

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9. Defendant Kirk Huntsman is the founder of defendant “Colorado Vivos” and of 

defendant “Vivos Therapeutics, Inc.” The use of the name “Vivos” in this Complaint shall refer to 

Colorado Vivos or, in the alternative, to Vivos Therapeutics, Inc., or, in the alternative, to both.

10. Vivos is in the business of selling its “Vivos Guide System,” including oral 

appliances, to dental professionals who treat, among others, pediatric patients presenting with 

certain medical conditions, including malocclusions, narrow arches and underdeveloped airways, 

and their associated health issues, including the underlying root causes of sleep disordered 

breathing.

11. Defendant Ben Miraglia is a dentist, a Vivos “Clinical Advisor,” and a resident of 

the state of New York with offices at 280 N Bedford Rd., Mt. Kisco, New York.

12. Defendant Brian Kraft is a dentist, a Vivos “Clinical Advisor” and a resident of the 

state of Utah with offices at 107 S 500 W., Payson, Utah.

13. Defendant Mark Musso is a dentist, a Vivos “Clinical Advisor” and a resident of 

the state of Texas, with offices at 513 W Centerville Rd., Garland, Texas.

14. Benco Dental Supply Co. (“Benco”) is a Pennsylvania corporation with corporate 

headquarters located at 295 CenterPoint Blvd., Pittston, Pennsylvania.

15. Benco is a distributor of dental supplies and equipment and a provider of dental 

consulting and dental equipment services. 

JURISDICTION

16. This Court has jurisdiction over the claims asserted in Counts I and VI (Violation 

of Lanham Act, 15 U.S.C. §1125(a)) pursuant to 28 U.S.C. §1331. This Court enjoys supplemental 

jurisdiction pursuant to 28 U.S.C. §1367 over the related state law claims for civil conspiracy 

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(Counts II-IV and VII-X), breach of Non-Compete Agreement (Count V) and breach of NonDisclosure Agreement (Count XI).

VENUE

17. Venue in the United States District Court for the Northern District of Illinois is 

appropriate under 28 U.S.C. §1391 because the defendants directed their marketing and sales 

activities at customers in this forum, the claims at issue arise out of or relate to those activities and 

where the written contracts at issue in Counts V and XI (Exs.A-B) contain choice of laws and 

venue/forum selection clauses providing that any legal disputes between the parties are to be 

governed by and construed under the laws of Illinois and that jurisdiction and venue for all such 

purposes shall be in Cook County, Illinois.

FACTUAL ALLEGATIONS

18. In April of 2018, Dr. Kraft and Ortho-Tain entered into a written “HealthyStart 

Speaking Agreement” pursuant to which Dr. Kraft agreed to perform services as a “HealthyStart 

Lecturer” to give presentations to pediatricians, ENT specialists and/or dental professionals 

regarding the use of Ortho-Tain’s oral appliances and its HealthyStart System for the treatment of, 

inter alia, malocclusions, narrow arches, and underdeveloped airways, and their associated health 

issues, including sleep disordered breathing.

19. A true and correct copy of the HealthyStart Speaking Agreement with Dr. Kraft is 

attached as Ex.A.

20. In June of 2014, Kirk Huntsman and Ortho-Tain entered into a written, NonDisclosure Agreement (“NDA”), pursuant to which Ortho-Tain agreed to and did provide Mr. 

Huntsman with certain Confidential Information regarding Ortho-Tain’s plans for the marketing, 

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sale and distribution of certain orthodontic appliances and procedures to be manufactured and 

developed by Ortho-Tain.

21. A true and correct copy of the written, non-disclosure agreement between OrthoTain and defendant Huntsman is attached as Ex.B.

22. In June of 2014 and continuing from time to time thereafter, Ortho-Tain provided 

Confidential Information to defendant Huntsman which included Ortho-Tain’s proprietary 

research data, including on cranio-facial measurements, airway development, and maxillary and 

mandibular bone growth and development. 

23. Additionally, Ortho-Tain provided defendant Huntsman with product exemplars of 

Ortho-Tain’s proprietary, transverse measurement ruler, its Nite-Guide® and Occlus-o-Guide®

oral appliances, its Initial Patient/Parent Questionnaire, its Compliance Charts, and its written 

instructions on proper patient use and techniques for assessing development and planning, and for 

taking measurements and progress photos to be submitted to Ortho-Tain for its review and 

feedback recommendations on future Ortho-Tain oral appliance prescriptions. 

24. Ortho-Tain provided Mr. Huntsman access to a wealth of research data on cranialfacial growth and development, compiled over several decades, and contained within esoteric 

journals, pediatric patient case records, photographs, charts, diagrams, videos and Power Point 

slides.

25. Through Ortho-Tain, defendant Huntsman was made aware of, introduced or 

referred to defendants Drs. Ben Miraglia, Brian Kraft and Mark Musso.

26. As of August 8, 2019, and for all times relevant thereafter, there existed an 

agreement between Benco and Vivos by which Benco would be paid compensation in exchange 

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for Benco’s marketing of the “Vivos System” and/or Benco’s sponsorship of one or more of Vivos’ 

marketing and/or sales presentations.

27. On August 8, 2019 Benco and/or Vivos issued a news release which announced

that Benco had formed a ‘strategic alliance’ with Vivos to collaborate and “help make all dentists 

in the United States aware” of Vivos’ “unique apnea treatment.” A true and correct copy of the 

Vivos/Benco ‘strategic alliance’ announcement is attached as Ex.C.

28. The Vivos/Benco news release (Ex.C) stated that Benco had signed a cooperative 

agreement with Vivos “to help broaden the Vivos System’s reach and ensure all dentists in the 

United States are aware of their patented system for treating obstructive sleep apnea.”

29. The Vivos/Benco public announcement (Ex.C) stated that Benco’s partnership with 

Vivos would include a “series of events beginning in October 2019” as well as twenty-seven (27) 

seminars, one in every Benco sales territory, during the first quarter of the year 2020. 

30. The Vivos/Benco public announcement (Ex.C) also stated that “Benco customers 

in all 50 states will have an in-person opportunity to learn more about the treatment, how it helps 

OSA suffers and increases the practitioner’s value to patients, plus helpful resources available for 

integrating it into their practice.”

31. On August 16, 2019 Benco announced, through its website, that it had ‘signed a 

cooperative agreement with Vivos Therapeutics, a company that focuses on addressing the causes 

of mild to moderate obstructive sleep apnea (OSA).” A true and correct copy of Benco’s 

announcement as aforesaid is attached as Ex.D.

32. The Benco website announcement (Ex.D), stated that the Vivos System made use 

of ‘revolutionary technology’ and represented the “first-ever hope for a lasting solution to the 

problem of sleep apnea.”

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33. One of the planned seminars that Benco sponsored pursuant to its agreement with 

Vivos was a “continuing education course” entitled “Learn How the Vivos System Induces the 

Remodeling of Human Airway Tissues”. (“Vivos System course”)

34. The “Vivos System course” was presented via an on-line webinar broadcast and/or

live to attendees on the following dates and/or in the following cities: 1/29/20 (Roswell, GA), 

1/30/20 (Raleigh, NC), 2/7/20 (Flower Mound, TX), 2/7/20 (St. Louis, MO), 2/20/20 (Charlotte, 

NC), 2/20/20 (Houston, TX), 2/21/20 (Costa Mesa, CA), 2/27/20 (Fresno, CA), 2/28/20 (Omaha, 

NE), 2/28/20 (Newark, CA), 3/11/20 (Philadelphia, PA), 3/12/20 (McLean, VA), 3/13/20 

(Florence, IN), 3/13/20 (Philadelphia, PA), 3/19/20 (Hauppauge, NY), 3/19/20 (Live Webinar), 

3/19/20 (Burlington, MA), 3/20/20 (Tempe, AZ), 3/20/20 (Colorado Springs, CO), 3/20/20 (Live 

Webinar), 3/26/20 (Independence, OH), 3/26/20 (Live Webinar), 3/26/20 (Livonia, MI), 3/27/20 

(Renton, WA), 3/27/20 (Hollywood, FL), and 3/27/20 (Live Webinar).

Vivos System Course – February 7, 2020 – Dr. Brian Kraft

35. As of not later than February 7, 2020, defendants Brian Kraft and Vivos had entered 

into an employment contract or other services agreement pursuant to which Dr. Kraft was publicly 

identified and marketed by Vivos as one of its “Clinical Advisors.” 

36. On February 7, 2020, Dr. Kraft appeared in St. Louis, Missouri, in his capacity as 

a Vivos “Clinical Advisor,” and presented one segment of the “Learn How the Vivos System 

Induces the Remodeling of Human Airway Tissues” course.

37. Attendees of the 2/7/20 Vivos System course presentation were informed by one or 

more Vivos’ presenters, including Dr. Kraft, that Vivos had a treatment “system” and/or an oral 

appliance that could be used for the treatment of pediatric dental patients suffering from sleep 

disordered breathing, including mild to moderate obstructive sleep apnea.

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38. On 2/7/20 Brian Kraft showcased the favorable results achieved in at least six 

pediatric patient-cases, identified in photographs/Power-Power slides as “Isaac” “Allie” “Ava” 

“Ella” “Matthew” and “Nicholas”.

39. True and correct copies of the Vivos Course advertisement for Dr. Kraft’s 2/7/20 

presentation, along with photographs/slides taken at the February 7, 2020 presentation of Dr. Kraft 

and of the six pediatric case studies showcased, are attached as Group Ex.E.

40. In fact, none of the six pediatric patient cases presented by Dr. Kraft on 2/7/20 had

ever been treated with the Vivos System or any “Vivos” oral appliances.

41. Instead, the true source or origin for the favorable pediatric patient treatment 

outcomes showcased by Dr. Kraft on 2/7/20 was Ortho-Tain, through the implementation of its 

HealthyStart® System and using Ortho-Tain’s patented, oral-appliances.

42. True and correct copies of select Ortho-Tain/HealthyStart records for each of the 

six pediatric cases, including pictures, invoices and appliance order forms are attached hereto as 

Group Ex.F.

43. Neither Ortho-Tain nor its HealthyStart® System were credited for the 

aforementioned six pediatric case study results presented by Dr. Kraft on 2/7/20.

44. Vivos does not own or hold the rights to any patents for oral appliances used for 

the treatment of pediatric patients with medical conditions causing sleep disordered breathing 

issues.

45. Benco benefitted financially from the presentation of the Vivos System course in 

that Benco was paid a portion or percentage of the revenues or profits generated from the sale of 

the Vivos “system” and/or Vivos oral appliances to the dental professional-attendees referred to 

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Vivos or resulting from Benco’s sponsorship of the Vivos System course presentations, including 

the presentation by Dr. Kraft on February 7, 2020 in St. Louis, MO.

46. Dr. Kraft benefitted in that he was compensated by Vivos for Dr. Kraft’s services 

as a Vivos Clinical Advisor, including for Dr. Kraft’s presentation of one or more segments of the 

Vivos System course in St. Louis, Missouri on February 7, 2020.

47. Vivos benefitted financially by virtue of its agreements with Benco and Dr. Kraft 

in that Benco’s members and customers were referred or introduced to credentialed pitchmen, such 

as Dr. Kraft, as well as Vivos sales’ representatives, who then proceeded to sell subscriptions to 

the very same attendees who had been misled into believing that Vivos had either an oral appliance 

or a “system” with a demonstrable record of successfully treating pediatric patients presenting with 

sleep disordered breathing issues.

COUNT I

VIOLATION OF LANHAM ACT BY VIVOS

48. Plaintiff incorporates the allegations set forth in ¶¶1-47 for this paragraph as if set 

forth in full.

49. The Lanham Act, at 15 U.S.C. §1125(a), provides in pertinent part that “Any person 

who shall affix, apply, or annex, or use in connection with any goods or services a false designation 

of origin, or any false designation or representation and shall cause such goods or services to 

enter into commerce shall be liable to a civil action by any person who believes that he is or is 

likely to be damaged by the use of any such false designation or representation.”.

50. Vivos knew that pediatric patients showcased in its’ “Vivos System” courses, 

including the six pediatric cases presented by Dr. Kraft on 2/7/20, had never been treated with any 

Vivos oral appliance or Vivos “system.”

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51. Dr. Kraft and/or Vivos knew that the favorable pediatric case studies results 

presented had been achieved through the implementation of the HealthyStart® System and/or using 

only Ortho-Tain’s patented, oral appliances.

52. Notwithstanding its knowledge of the true source or origin for the favorable 

pediatric case study results, Vivos, through its agents, including defendants Huntsman, Musso, 

Miraglia and/or Dr. Kraft, affixed the name “Vivos” on each of the pediatric case study

photographs presented to attendees of the Vivos System courses, including the six pediatric 

patients presented by Dr. Kraft on 2/7/20 in St. Louis, Missouri, as depicted in Group Ex.E.

53. Notwithstanding its knowledge of the true source or origin for the favorable 

pediatric case study results, Vivos, through its presenting Clinical Advisors, including Dr. Kraft,

falsely represented that Vivos had “revolutionary” technology, in the form of a “Vivos Guide” oral 

appliance, that could be used to treat pediatric patients with sleep disordered breathing issues 

caused by medical conditions such as malocclusions, narrow arches and underdeveloped airways.

54. The Vivos System course’s title - “Learn How the Vivos System Induces the 

Remodeling of Human Airway Tissues,” along with Vivos’ Clinical Advisors’ presentations of 

pediatric case study photographs labeled “Vivos,” were designed to and did have the effect of 

confusing and misleading the attendees of the Vivos System courses into logically, yet incorrectly, 

concluding or believing that the favorable pediatric case study results showcased had been 

achieved by Vivos, instead of the true source or origin, Ortho-Tain.

55. The conduct of Vivos and its “Clinical Advisors,” including Dr. Kraft, was a 

purposeful attempt to misappropriate or profit from Ortho-Tain’s talents and workmanship. 

56. At the conclusion of the presentation of the Benco-sponsored Vivos System 

seminars and “continuing education” courses, including the “Vivos System” course presented by 

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Dr. Kraft on 2/7/20 in St. Louis, MO, Vivos caused its goods or services to be entered into 

commerce in that course attendees were invited and directed to meet with on-site Vivos sales’ staff 

who then solicited and sold Vivos’ oral appliances and/or service subscriptions to become trained 

or certified in the Vivos “system.”

57. Ortho-Tain has suffered damages as a result of defendants’ wrongful conduct in 

that Vivos and Benco diverted sales, and involuntarily deprived Ortho-Tain of the advertising 

value of its name and of the goodwill that otherwise would stem from public knowledge of the 

true source of the satisfactory pediatric oral appliance-products and the favorable results achieved 

through the implementation of Ortho-Tain’s HealthyStart® System.

58. Attendees of the Benco-sponsored “Vivos System courses,” as identified herein, 

were also deprived of knowing the true source or origin of the pediatric oral appliance products

used to achieve the favorable results showcased, and were deceived into believing that the 

favorable results had been achieved by a different source – Vivos – which had affixed its name on 

each of the pediatric case study photographs showcased by Dr. Kraft in the 2/7/20 “Vivos System” 

course in St. Louis, Missouri, and attached as Ex.E.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in its favor and against defendant Vivos on Count I; 

(b) order that any compensation, profit or benefit received by Vivos as a result of its’

conduct in violation of the Lanham Act be disgorged and instead awarded to Ortho-Tain as money 

damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its legal claims; and

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(d) grant Ortho-Tain such other and further relief, including an award of treble damages, 

as permitted by law.

COUNT II

CIVIL CONSPIRACY BY VIVOS

59. Plaintiff incorporates the allegations set forth in ¶¶1-58, for this paragraph as if set 

forth in full.

60. For all times relevant there was an agreement between Vivos and Benco whereby 

each knowingly and voluntarily participated in a common scheme to commit an unlawful act or a 

lawful act in an unlawful manner. 

61. Benco and Vivos understood the general objectives of the conspiratorial scheme, 

which were to profit from the sale of Vivos’ goods and/or services to attendees of “Vivos System” 

courses.

62. Benco assisted with the planning and, through its website-announcement and 

representations and its sponsorship of the “Vivos System” courses, encouraged and facilitated 

Vivos’ unlawful false designation of source or origin conduct violative of the Lanham Act.

63. Benco accepted and agreed and acted overtly to further the general objectives of 

the conspiratorial scheme by publishing one or more announcements on its website, which 

marketed Vivos’ “revolutionary” technology, and through its sponsorship of the “Vivos System”

courses, which were made available to Benco’s members at no charge.

64. Vivos understood the general objectives of the conspiratorial scheme and, toward 

that end, took action in furtherance of the conspiracy by affixing the “Vivos” name to certain 

pediatric case study photographs or Power Point-format slides, and showcased by its “Clinical 

Advisors,” including Dr. Kraft, with whom Vivos had contracted to provide presentations.

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65. Vivos’ accepted and agreed and acted overtly to further the general objectives of 

the conspiratorial scheme by retaining certain “Clinical Advisors,” including Dr. Kraft, to give 

lectures or presentations to attendees of the Benco-sponsored “Vivos System” courses, and by 

making use of “Vivos” labeled photographs of pediatric patients who had, in fact, obtained their

favorable results itn treatment of their sleep disordered breathing issues through the use of OrthoTain’s patented, oral appliances and the implementation of its HealthyStart® System.

66. Ortho-Tain has suffered damages as a result of defendants’ wrongful conduct in 

that Vivos and Benco diverted sales and involuntarily deprived Ortho-Tain of the advertising value 

of its name and of the goodwill that otherwise would stem from public knowledge of the true 

source of the satisfactory pediatric oral appliance-products and the favorable results achieved 

through the implementation of its HealthyStart® System.

67. Attendees of the Benco-sponsored “Vivos System courses,” as identified herein, 

were also deprived of knowing the true source or origin of the pediatric oral appliance products

used to achieve the favorable results showcased, and were deceived into believing that the 

favorable results had been achieved by a different source – Vivos.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in favor of Ortho-Tain and against the Vivos defendants on Count II;

(b) order Vivos to account for and disgorge the compensation, profits or other benefit 

received by it as a result of its conspiratorial conduct to violate the Lanham Act and that same be 

awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

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COUNT III

CIVIL CONSPIRACY BY BENCO

68. Plaintiff incorporates the allegations set forth in ¶¶1-67, for this paragraph as if set 

forth in full.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in favor of Ortho-Tain and against Benco on Count III;

(b) order that Benco account for and disgorge any compensation, profit or benefit received 

by it as a result of its conspiratorial conduct to violate the Lanham Act and that same be awarded 

to Ortho-Tain as money damages;

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

COUNT IV

CIVIL CONSPIRACY BY MARK MUSSO

69. Plaintiff incorporates the allegations set forth in ¶¶1-67 for this paragraph as if set 

forth in full.

70. For all times relevant defendant Musso had an agreement with Vivos whereby 

Musso was compensated for services as a Vivos Clinical Advisor.

71. Pursuant to that agreement defendant Musso gave to Vivos, through its agents, the 

photographs or power-point slides or other electronic reproductions of the six pediatric cases 

studies (“Isaac” “Allie” “Ava” “Ella” “Matthew” and “Nicholas”), identified in Group Ex.E, which 

were then labeled “Vivos” and showcased by defendant Kraft in his 2/7/20 presentation of the 

“Vivos System course” to attendees in St. Louis, Missouri.

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72. Dr. Musso understood the general objectives of the conspiratorial scheme, accepted 

and agreed and acted overtly to further the general objectives of the conspiratorial scheme by 

providing numerous initial and progress photographs/Power-Point slides of six pediatric patients

(Group Ex.E) who Dr. Musso knew to have been treated with Ortho-Tain’s patented appliances.

73. Dr. Musso’s conduct was deliberate and performed with knowledge of Vivos’ 

intent to showcase the supplied photographs/slides as false-evidence of Vivos’ skill, state of 

product development and/or of a track record of prior successes. 

74. Dr. Musso’s provision of the aforementioned six pediatric case study

photographs/power point slides aided and facilitated Vivos in its intended goal of misleading 

course attendees into incorrectly believing that Vivos and its appliances or system were responsible 

for the favorable results showcased, instead of the true source or origin, Ortho-Tain.

75. Ortho-Tain has suffered damages as a result of defendants’ wrongful conduct in 

that Vivos, Benco, and Dr. Musso diverted sales, and involuntarily deprived Ortho-Tain of the 

advertising value of its name and of the goodwill that otherwise would stem from public 

knowledge of the true source of the satisfactory pediatric oral appliance-products, Ortho-Tain, and 

the favorable results achieved through the implementation of its’ HealthyStart® System.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in favor of Ortho-Tain and against defendant Musso on Count IV;

(b) order that defendant Musso account for and disgorge any compensation, profit or 

benefit received by him/his company as a result of his conspiratorial conduct to violate the 

Lanham Act and that same be awarded to Ortho-Tain as money damages;

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

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(d) grant Ortho-Tain such other and further relief as may be permitted by law.

COUNT V

BREACH OF CONTRACT BY DR. BRIAN KRAFT

76. Plaintiff incorporates the allegations set forth in ¶¶1-58 for this paragraph as if set 

forth in full.

77. Dr. Kraft performed services pursuant to the HealthyStart® Speaking Agreement,

Ex.A., including a May, 2018 lecture about Ortho-Tain’s oral appliances and its HealthyStart®

System.

78. Ortho-Tain fully performed all obligations required of it under the HealthyStart®

Speaking Agreement with Dr. Kraft (Ex.A).

79. Dr. Kraft terminated the HealthyStart® Speaking Agreement with Ortho-Tain on 

April 10, 2020.

80. The HealthyStart® Speaking Agreement with Dr. Kraft (Ex.A), identifies OrthoTain as “Company” and Dr. Kraft as “Lecturer” and provides in salient part in Section 4 that: 

“Under no circumstances shall Lecturer market, sell, distribute, solicit, or be involved in any way 

with another manufacturer selling competitive products without the express approval of 

Company.”

81. The HealthyStart® Speaking Agreement with Dr. Kraft (Ex.A) also provides, in 

salient part, in Section 4 that “Under no circumstances shall Lecturer sell, promote, or advertise 

Products of a third party website without the express written approval of Company.”

82. Ortho-Tain never consented to or gave its approval, express or otherwise, for Dr. 

Kraft’s involvement as a Vivos “Clinical Advisor” and, acutely, for his services as a presenter of 

one segment of the Vivos System course on February 7, 2020 in St. Louis, Missouri.

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83. Section 9 of the HealthyStart® Agreement with Dr. Kraft (Ex.A), is entitled 

“Agreement Not to Compete” and provides: “In exchange for valuable consideration herewith 

provided and acknowledged, Lecturer agrees not to directly or indirectly participate in a business 

that is substantially similar to the business operated by the Company for at least two (2) years 

after the last date contractor provides any services for company. This includes participating in a 

substantially similar business, or as an owner, director, officer, consultant, independent 

contractor, employee or agent of another such business.”

84. Section 9 of the HealthyStart® Agreement with Dr. Kraft (Ex.A) also provided that 

Dr. Kraft agreed that he would not: “Solicit or attempt to solicit any business or trade from 

Company’s actual or prospective clients, customers, or patients” or “Divert or attempt to divert 

business away from the company.”

85. Dr. Kraft breached the HealthyStart® Agreement, Ex.A., by directly or indirectly 

participating in a business, Vivos, that is substantially similar to Ortho-Tain’s business, when he 

participated as its “Clinical Advisor” and/or presenter of one segment of the “Vivos System” 

course on February 7, 2020 in St. Louis, Missouri.

86. Ortho-Tain has suffered damages as a result Dr. Kraft’s breach of contract in that 

Dr. Kraft has participated as an agent for a competing company, solicited or attempted to solicit 

business from Ortho-Tain’s actual or prospective clients, customers or patients, and has attempted 

to divert and has diverted business away from Ortho-Tain.

87. Ortho-Tain has suffered damages as a result of Dr. Kraft’s breach of contract in that 

Dr. Kraft falsely represented to attendees of the 2/7/2020 “Vivos System course” that Vivos was 

possessed with an “Vivos Guide” oral appliance and a “system” which had achieved favorable 

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results in numerous pediatric patients, including the six pediatric caste study patients (“Isaac” 

“Allie” “Ava” “Ella” “Matthew” and “Nicholas”) showcased by Dr. Kraft.

88. Ortho-Tain has suffered damages as a result of Dr. Kraft’s wrongful conduct that

has involuntarily deprived Ortho-Tain of the advertising value of its name and of the goodwill that 

otherwise would have stemmed from public knowledge of the true source of the utilized pediatric 

oral appliance-products and that the favorable results had been achieved, not through Vivos or any 

system it might claim to have, but rather through the implementation of Ortho-Tain’s

HealthyStart® System.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court:

(a) enter a judgment in favor of Ortho-Tain and against defendant Kraft on Count V;

(b) order defendant Kraft to account for and disgorge the compensation, profits or other 

benefits received by him/his company to date from Vivos and/or other third-party payors of 

compensation for his services as a Vivos “Clinical Advisor,” including as a presenting lecturer on 

of the Vivos System course in St. Louis, Missouri on February 7, 2020, and order that said profits 

be awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

Vivos – 2020 Wellness Summit – March 26, 2020 – Dr. Ben Miraglia

COUNT VI

VIOLATION OF LANHAM ACT BY VIVOS

89. Plaintiff incorporates the allegations set forth in ¶¶1-15 and ¶¶20-32, for this 

paragraph as if set forth in full.

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90. The Lanham Act, at 15 U.S.C. §1125(a), provides in pertinent part that “Any person 

who shall affix, apply, or annex, or use in connection with any goods or services a false designation 

of origin, or any false designation or representation and shall cause such goods or services to 

enter into commerce shall be liable to a civil action by any person who believes that he is or is 

likely to be damaged by the use of any such false designation or representation.”.

91. On March 26, 2020, Dr. Ben Miraglia, in his capacity as a Vivos Therapeutics’

“Clinical Advisor,” presented an on-line recorded presentation to registered dental professionals 

for a “2020 Wellness Summit” and a segment thereof entitled “Introduction to Patient Cases

Under 18” (the “Vivos’ Wellness Summit”).

92. According to a Vivos’ press release (https://www.prnewswire.com/newsreleases/sleep-apnea-company-vivos-therapeutics-successfully-launches-online-training-tohealthcare-professionals-during-pandemic-301042887.html), “Vivos sponsored its first online 

education and training Summit on March 26-27, featuring selected clinicians from the dental and 

medical arena, reaching maximum capacity in just three days, with over 500 dentists in 

attendance. Six additional two-day encore events were quickly scheduled twice a week thereafter 

to accommodate the surging demand, with some reaching maximum capacity in mere hours after 

posting on the event website at http://airwaysummit.com. Currently, over 4,300 healthcare 

professionals concerned about sleep, breathing, and wellness have registered for this novel and 

powerful program.”

93. In that same press release, defendant Huntsman is quoted as having stated: "We 

believe our approach represents the world's first hope for a potentially global solution to the 

estimated one billion who suffer from OSA, which is a serious and growing health epidemic," says 

R. Kirk Huntsman, co-founder and CEO at Vivos. "By going virtual with sleep/breathing education 

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and training, we have created an opportunity for everyone to come and learn about the latest 

developments in currently available treatment options.”

94. Vivos does not own or hold the rights to any patents for oral appliances used for 

the treatment of pediatric patients with medical conditions causing sleep disordered breathing 

issues.

95. In the 3/26/2020 Vivos’ Wellness Summit presentation Dr. Miraglia showcased the

favorable results achieved in several pediatric patient-cases in photographs or Power-Point-style 

slides.

96. True and correct copies of screen-shots from the March 26, 2020 Wellness Summit 

of three such pediatric case studies showcased by Dr. Miraglia are attached hereto as Ex.G.

97. Dr. Miraglia’s presentation of the Vivos’ Wellness Summit included photographs

or Power-Point slides of blue-colored oral appliances that Vivos was marketing as its’ “Starter 

Guide” and “VG Series.”

98. A true and correct copy of the screen-shot of Dr. Miraglia’s 3/26/2020 showcasing 

of the blue-colored appliances comprising the “Vivos Guide System” is attached as Ex.H.

99. At the 2020 Wellness Summit, Dr. Miraglia’s presentation stated to the on-line 

attendees “You’re going to be taught all about the Vivos’ Guide System and how they’re used.”

100. In fact, none of the pediatric patients, as identified in Ex.G, and presented by Dr. 

Miraglia on 3/26/20, had ever been treated with any Vivos appliance or “system”.

101. For example, the child identified as “Child A” (in Ex.G) showcased by Dr. 

Miraglia, had received his favorable results, in just six weeks’ time, using only Ortho-Tain’s 

patented, Nite Guide® appliance.

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102. In October of 2014, Dr. Miraglia was a paid presenter of a similar course, to the 

Heartland Dental group, at which time he showcased this same pediatric case study (“Child A”).

In October of 2014, Dr. Miraglia correctly informed the Heartland Dental attendees that “Child A”

had achieved his favorable results using only Ortho-Tain’s patented Nite Guide® appliance for 

just six weeks.

103. A true and correct copy of the screen shots of “Child A,” as presented by Dr. 

Miraglia on October 4, 2014 at the Heartland Dental seminar are attached hereto as Group Ex.I.

104. However, at the March, 2020 Wellness Summit, attendees were not informed of the 

true source or origin for the favorable pediatric patient treatment outcome, Ortho-Tain, but rather 

were lead to believe, logically, yet incorrectly, that it was a Vivos appliance or “system” that was 

responsible for the favorable outcome presented.

105. At the 2020 Wellness Summit presentation Dr. Miraglia stated: “And with the 

primary dentition you’re going to learn about Starter Guides. And when you have primary 

dentition your opportunity to use Starter Guides to help these children out will be significant.”

106. At the 2020 Wellness Summit presentation Dr. Miraglia, in presenting “Child A” 

stated, in the course of pitching Vivos’ appliances: “Next thing you know, with a guidance

appliance and some exercises you could experience this change in just six weeks. And in just six 

weeks’ time you can have a significant difference in the level of deep bite and the room for the 

teeth.”

107. Another pediatric case showcased by Dr. Miraglia at the 2020 Wellness Summit 

was Child B (“Ian”), depicted in Ex.G.

108. In October of 2014, Dr. Miraglia showcased this same pediatric case study (“Ian”), 

but as a paid-presenter to the Heartland Dental seminar. At that time, Dr. Miraglia correctly 

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informed the Heartland Dental attendees that “Ian” had achieved his favorable results using only 

Ortho-Tain’s patented Occlus-o-Guide® appliance.

109. A true and correct copy of the screen shots of “Ian” as presented by Dr. Miraglia in 

October of 2014 at the Heartland Dental seminar are attached hereto as Group Ex.I.

110. By contrast, at the March, 2020 Wellness Summit attendees were not informed of 

the true source or origin for Ian’s favorable pediatric patient treatment outcome, Ortho-Tain, but 

rather were lead to believe, logically, yet incorrectly, that it was a Vivos appliance or Vivos 

“system” that was responsible for Ian’s favorable outcome.

111. At the March, 2020 Wellness Summit, Dr. Miraglia’s presentation included several 

progress photographs showing “Ian’s” good results over time and included the following 

representations: “By the time we are 9 years old... we can graduate from the [Vivos] Starter Guides 

into your VG Series. The idea is when you get to mixed dentition you’re going to be taught how to 

use the VG Series Guides to deliver these type results. The idea is by the time we’re 9 years old 

what was a crowded, collapsed deep bite is now a beautiful and appropriate overbite and overjet 

in the mixed dentition.”

112. Child B/”Ian” was never treated with a Vivos appliance.

113. Dr. Miraglia’s presentation of “Ian’s” case study photographs/slides at both the 

2014 Heartland Institute seminar and the 2020 Wellness Summit included the same story about 

how Dr. Miraglia had been able to persuade “Ian” to want to use the oral appliance being shown 

to him at the initial visit. In both seminars, 2014 and 2020, Dr. Miraglia stated that he led “Ian” to 

believe that New York Yankee Derek Jeter had achieved his celebrity smile with oral appliances.

114. Dr. Miraglia has never treated Derek Jeter. 

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115. At the 2020 Wellness Summit Dr. Miraglia explained that, in Ian’s case, the ends 

justified the means, stating (concurrent with the presentation of Ian’s 10-month progress photo): 

“But, I’m not above trickery. I’m absolutely not above trickery to help a child. So, you know, my 

bad. I lied to that child. My bad. I tricked a child and, uh, shame on me for tricking a child into 

being healthy but here we go, I got that guide into his mouth.”

116. Another pediatric case showcased by Dr. Miraglia at the 2020 Wellness Summit 

was Child C (“Emma”), depicted in Ex.G.

117. In October of 2014, Dr. Miraglia showcased this same pediatric case study

(“Emma”), but as a paid-presenter at the Heartland Dental seminar. At that time, Dr. Miraglia 

correctly informed the attendees that “Emma” had achieved her favorable results using only OrthoTain’s patented Occlus-o-Guide® appliance.

118. A true and correct copy of the screen shots of “Emma,” as presented by Dr. Miraglia 

in October of 2014 at the Heartland Dental seminar are attached hereto as Group Ex.I.

119. By contrast, at the March, 2020 Wellness Summit attendees were not informed of 

the true source or origin for Emma’s favorable pediatric patient treatment outcome, Ortho-Tain, 

but rather were lead to believe, logically, yet incorrectly, that it was a Vivos appliance or Vivos 

“system” that was responsible for Emma’s favorable outcome.

120. At the Wellness Summit, Dr. Miraglia’s presentation of Vivos, its appliances and/or 

system, included several progress photographs showing Emma’s good results over time, including 

a comparison photograph showing Emma’s mouth/teeth at age “11” and at age “12.3,” and 

concurrent with the following statement: “So with, with the good techniques that you’re going to 

learn and appropriate appliances...next thing you know you can experience this level of forward 

and wider growth and have a distinct jaw line and a beautiful separation of the head and neck, 

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and lips well ahead of the eyes, and all of a sudden a significant amount of growth and development

that delivers better breathing.”

121. Child C/Emma was never treated with a Vivos appliance. 

122. Neither the HealthyStart® System nor Ortho-Tain were ever credited with or for 

the favorable pediatric case study results presented by Dr. Miraglia at the 2020 Wellness Summit.

123. Through its founder, Dr. Earl Bergersen, Ortho-Tain has a 53-year history as an 

innovator and developer of treatment modalities to address the underlying root causes of pediatric 

sleep, breathing, and airway deficiencies by promoting and guiding growth of the pediatric patient, 

through the use of oral appliances, and addressing improper oral habits. 

124. Dr. Bergersen and Ortho-Tain have approximately 511 patents registered for such 

oral appliances and Ortho-Tain’s proprietary system, including its HealthyStart® System, has

successfully helped with the treatment of more than four (4) million patients to date.

125. The three pediatric patients showcased by Vivos, through Dr. Miraglia at the 2020 

Wellness Summit on 3/26/2020 (Ex.G) had received their HealthyStart® System treatment, using 

only Ortho-Tain’s patented, oral appliances as of the year 2014 - years before Vivos even had a 

corporate existence, whether in it be in Wyoming or in Colorado.

126. Benco was a sponsor of the 2020 Wellness Summit.

127. Benco benefitted financially from Dr. Miraglia’s presentation at the 2020 Wellness 

Summit in that Benco was paid a portion or percentage of the revenues or profits generated from

the sale of the Vivos “system” and/or Vivos oral appliances to the dental professional-attendees

referred to Vivos or resulting from Benco’s sponsorship of the 2020 Wellness Summit.

128. Dr. Miraglia was compensated by Vivos for his services as its Clinical Advisor, 

including for his presentation at the 2020 Wellness Summit in March of 2020 as alleged herein.

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129. Vivos benefitted financially by virtue of its agreements with Benco and Dr. 

Miraglia in that Benco’s members and customers were referred or introduced to credentialed 

pitchmen, such as Dr. Miraglia, as well as Vivos sales’ representatives, who then proceeded to sell 

subscriptions to the very same attendees who had been misled into believing that Vivos had either 

an oral appliance or a “system” with a demonstrable record of successfully treating pediatric 

patients presenting with sleep disordered breathing issues.

130. The conduct of Vivos and its “Clinical Advisors,” including Dr. Miraglia, was a 

purposeful attempt to misappropriate or profit from Ortho-Tain’s talents and workmanship. 

131. At the conclusion of the presentation of the 2020 Wellness Summit Vivos caused 

its goods or services to be entered into commerce in that on-line seminar course attendees were 

invited and directed to connect with Vivos sales’ staff who then solicited and sold Vivos’ oral 

appliances and/or service subscriptions to become trained or certified in the Vivos “system.”

132. Ortho-Tain has suffered damages as a result of defendants’ wrongful conduct in 

that Vivos, Dr. Miraglia and Benco diverted sales, and involuntarily deprived Ortho-Tain of the 

advertising value of its name and of the goodwill that otherwise would stem from public 

knowledge of the true source of the satisfactory pediatric oral appliance-products and the favorable 

results achieved through the implementation of Ortho-Tain’s HealthyStart® System.

133. Attendees of the March, 2020 Vivos Wellness Summit featuring Dr. Miraglia were 

also deprived of knowing the true source or origin of the pediatric oral appliance products used to 

achieve the favorable results showcased, and were deceived into believing that the favorable 

results had been achieved by a different source – Vivos.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in its favor and against defendant Vivos on Count VI; 

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(b) order any compensation, profits or other benefits received by Vivos as a result of its’

conduct in violation of the Lanham Act be disgorged and instead awarded to Ortho-Tain as money 

damages;

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its legal claims; and 

(d) grant Ortho-Tain such other and further relief, including an award of treble damages, 

as permitted by law.

COUNT VII

CIVIL CONSPIRACY BY VIVOS

134. Plaintiff incorporates the allegations set forth in ¶¶1-15, 20-32, 89-133, for this 

paragraph as if set forth in full.

135. For all times relevant there was an agreement between Vivos and Benco whereby 

each knowingly and voluntarily participated in common scheme to commit an unlawful act or a 

lawful act in an unlawful manner. 

136. Benco and Vivos, and its Clinical Advisor, Dr. Miraglia, understood the general 

objectives of the conspiratorial scheme, which were to profit from the sale of Vivos’ goods and/or 

services to attendees of the 2020 Wellness Summit presentation by Dr. Miraglia and Vivos.

137. Benco assisted with the planning and, with its sponsorship of the 2020 Wellness 

Summit, encouraged and facilitated Vivos’ unlawful false designation of source or origin conduct, 

in violation of the Lanham Act.

138. Benco accepted and agreed and acted overtly to further the general objectives of 

the conspiratorial scheme by publishing one or more announcements on its website, which 

marketed Vivos’ “revolutionary” technology, and through its sponsorship of the Vivos’ marketing 

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and sales’ courses, including the 2020 Wellness Summit, which were made available to Benco’s 

members at reduced or no charge.

139. Vivos understood the general objectives of the conspiratorial scheme and, toward 

that end, took action in furtherance of the conspiracy by re-packaging numerous initial and 

progress photographs/Power-Point slides of pediatric patients who had been treated with OrthoTain’s appliances, and then showcasing them as if the results were attributable to Vivos.

140. Vivos’ accepted and agreed and acted overtly to further the general objectives of 

the conspiratorial scheme by having its “Clinical Advisors,” including Dr. Miraglia, give lecturers 

or presentations to attendees of the Benco sponsored “Vivos” events, including the 2020 Wellness 

Summit, while using re-packaged case study photographs/power-point slides of Ortho-Tainappliance-treated pediatric cases in a fashion that had the effect of misleading attendees into 

incorrectly believing that Vivos and its appliances or system were responsible for the favorable 

results showcased.

141. Ortho-Tain has suffered damages as a result of defendants’ wrongful conduct in 

that Vivos, Benco and Dr. Miraglia diverted sales, and involuntarily deprived Ortho-Tain of the 

advertising value of its name and of the goodwill that otherwise would stem from public 

knowledge of the true source of the satisfactory pediatric oral appliance-products, Ortho-Tain, and 

the favorable results achieved through the implementation of its’ HealthyStart® System.

142. Attendees of the March, 2020 Vivos Wellness Summit featuring Dr. Miraglia were 

also deprived of knowing the true source or origin of the pediatric oral appliance products used to 

achieve the favorable results showcased, and were deceived into believing that the favorable 

results had been achieved by a different source – Vivos.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

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(a) enter a judgment in favor of Ortho-Tain and against the Vivos defendants on Count VII;

(b) order Vivos to account for and disgorge the compensation, profits or other benefits

received by it as a result of its conspiratorial conduct to violate the Lanham Act and that same be 

awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

COUNT VIII

CIVIL CONSPIRACY BY BENCO

143. Plaintiff incorporates the allegations set forth in ¶¶1-15, 20-32, 89-142, for this 

paragraph as if set forth in full.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in favor of Ortho-Tain and against Benco on Count VIII;

(b) order Benco to account for and disgorge the compensation, profits or other benefits

received by it as a result of its conspiratorial conduct to violate the Lanham Act and that same be 

awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

COUNT IX

CIVIL CONSPIRACY BY BEN MIRAGLIA

144. Plaintiff incorporates the allegations set forth in ¶¶1-15, 20-32 and ¶¶89-142 for 

this paragraph as if set forth in full.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

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(a) enter a judgment in favor of Ortho-Tain and against Ben Miraglia on Count IX;

(b) order defendant Miraglia to account for and disgorge the compensation, profit or other 

benefits received by him as a result of his conspiratorial conduct to violate the Lanham Act and 

that same be awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

COUNT X

CIVIL CONSPIRACY KIRK HUNTSMAN

145. Plaintiff incorporates the allegations set forth in ¶¶1-144 for this paragraph as if set 

forth in full.

146. In June of 2014, Kirk Huntsman entered into an agreement with Ortho-Tain, Inc., 

a true and correct copy of which is attached as Ex.B.

147. Pursuant to that agreement, Mr. Huntsman received Confidential Information, 

including technical, professional, scientific, design and commercial data regarding Ortho-Tain’s 

four-decades of product and process development.

148. Mr. Huntsman agreed not to disclose or otherwise make use the Confidential 

Information received from Ortho-Tain except for the purpose of assessing the marketing viability 

for Ortho-Tain Product incorporating the Confidential Information.

149. In July of 2016 Mr. Huntsman formed “Corrective Biotechnologies, Inc.,” in the 

state of Wyoming, which is now known as Vivos Therapeutics, Inc.. In January of 2017, Mr. 

Huntsman filed Articles of Amendment with the Colorado Secretary of State to register 

“Corrective BioTechnologies, Inc.” Since that time, both corporations have variously conducted 

business under the registered name “Vivos Therapeutics, Inc.”

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150. As the founder and President of the two Vivos corporate defendants Mr. Huntsman 

was chiefly responsible for the conduct of Vivos, including its marketing and business agreements

with defendants Benco, and with defendant Drs. Miraglia, Musso and Kraft.

151. Defendant Huntsman has misappropriated and unlawfully disseminated OrthoTain’s proprietary and Confidential Information.

152. Defendant Huntsman has altered, or directed others to alter, the Ortho-Tain-treated 

pediatric patient case photographs/slides so as to bear the label “Vivos” which were then given to 

Vivos’ Clinical Advisors for their use in Vivos’ scheme to deceive the attendees of its Vivos’

marketing and sales courses and seminars into forming an incorrect belief that the showcased 

pediatric case results had been achieved through the use of Vivos appliances and/or system 

services.

153. Defendant Huntsman has further perpetuated the false designation of source or 

origin through the creation and dissemination of a marketing ‘parent webinar’ which has been 

given to approximately 700 Vivos “providers” to date. 

154. The Vivos parent webinar, like the “Vivos System course” and “2020 Wellness 

Summit,” showcases the favorable results achieved in select pediatric cases which had not been 

obtained by any Vivos appliance or system, but rather through the proprietary skill and talents of 

Ortho-Tain, using its appliances and HealthyStart® System, and without attribution.

155. In so doing Huntsman breached the terms of his agreement with Ortho-Tain, 

including the NDA attached as Ex.B.

156. For all times relevant there was an agreement between defendants Huntsman, 

Musso and Miraglia whereby each knowingly and voluntarily participated in common scheme to 

commit an unlawful act or a lawful act in an unlawful manner. 

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157. Defendants Huntsman, Musso and Miraglia understood the general objectives of 

the conspiratorial scheme, which were to profit from the sale of Vivos’ goods and/or services to 

attendees of the Vivos System courses and seminars as alleged in this Complaint, including the 

Vivos System courses and the 2020 Wellness Summit.

158. Huntsman assisted with the planning and preparation of the “Vivos System” 

courses, and encouraged and facilitated the unlawful false designation of source or origin conduct, 

in violation of the Lanham Act, through his dissemination of Ortho-Tain’s Confidential 

Information, including information put into Power Point slides re-formatted and used by Vivos. 

159. Huntsman assisted with the planning and preparation of the “Vivos System” by 

sharing with defendant Miraglia the proprietary features of Ortho-Tain’s appliances, Confidential 

Information on the proprietary materials used in same, material sourcing and information on tool 

design for manufacturing to exacting specifications needed to successfully guide maxilla and 

mandibular growth and development.

160. Huntsman assisted with the planning and preparation and encouraged and 

facilitated the unlawful false designation of source or origin conduct through his or his company’s 

re-labeling or re-packaging of numerous pediatric case study progress photographs/slides which 

were then given to Vivos’ Clinical Advisors, including Dr. Kraft and/or Dr. Miraglia, for 

presentation to dental professionals targeted by Vivos for sales of its goods and services.

161. Huntsman accepted and agreed and acted overtly to further the general objectives 

of the conspiratorial scheme through his manipulation of photographs/slides, so as to label them 

“Vivos” when a reasonably prudent person would become confused into believing that the results 

being presented had been achieved by Vivos, instead of the true source or origin, Ortho-Tain.

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162. Huntsman, Musso and Miraglia understood the general objectives of the 

conspiratorial scheme, accepted and agreed and acted overtly to further the general objectives of 

the conspiratorial scheme by re-packaging the numerous initial and progress photographs of OrthoTain-treated pediatric patients into power-point slides that were then presenting to attendees in a 

fashion designed and intended to deceive and mislead them, and which did deceive and mislead

them, into forming the logical, yet incorrect, belief that a Vivos appliance or system had 

contributed to the favorable outcomes showcased.

163. Ortho-Tain has suffered damages as a result of defendants’ wrongful conduct, 

including lost revenue, diverted sales, and the involuntarily deprivation of the advertising value of 

Ortho-Tain’s name and of the goodwill that otherwise would stem from public knowledge of the 

true source of the satisfactory pediatric oral appliance-products, and the favorable results achieved 

through the implementation of its’ HealthyStart® System.

164. Through Huntsman’s actions, attendees of the Vivos System courses and seminars

throughout the country, including on 2/7/20 in St. Louis, Missouri, and those on-line attendees of 

the March 26, 2020 Vivos Wellness Summit featuring Dr. Miraglia, were deprived of knowing the 

true source or origin of the pediatric oral appliance products used to achieve the favorable results 

showcased, Ortho-Tain, and were misled and deceived into incorrectly believing that the favorable 

results showcased had been achieved by a different source – Vivos.

165. As a result of defendant Huntsman and his Vivos’ companies’ actions, Dr. Brian 

Kraft was induced and caused to wrongfully breach his Non-Compete Agreement, Ex.A. with 

Ortho-Tain.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in favor of Ortho-Tain and against defendant Huntsman on Count X;

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(b) order Mr. Huntsman to account for and disgorge the compensation, profits or other 

benefit received by him as a result of his conspiratorial conduct to violate the Lanham Act and that 

same be awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

(d) grant Ortho-Tain such other and further relief as may be permitted by law.

COUNT XI

BREACH OF NON-DISCLOSURE AGREEMENT

166. Plaintiff incorporates the allegations set forth in ¶¶1-165 for this paragraph as if set 

forth in full.

167. Huntsman’s conduct, as alleged herein, was in breach of the Non-Disclosure 

Agreement signed by him in June of 2014. Ex.B.

168. Ortho-Tain has suffered damages as a result of defendant’s wrongful conduct, 

including lost revenue, diverted sales, and the involuntarily deprivation of the advertising value of 

Ortho-Tain’s name and of the goodwill that otherwise would stem from public knowledge of the 

true source of the satisfactory pediatric oral appliance-products, and the favorable results achieved 

through the implementation of its’ HealthyStart® System.

WHEREFORE, Ortho-Tain, Inc. respectfully prays that the Court: 

(a) enter a judgment in favor of Ortho-Tain and against Mr. Huntsman on Count XI;

(b) order Huntsman to account for and disgorge all compensation, profit or other benefit

received by him as a result of his conspiratorial conduct to violate the Lanham Act and that same 

be awarded to Ortho-Tain as money damages; 

(c) award Ortho-Tain its’ reasonable attorneys’ fees and court costs incurred in prosecuting 

its Complaint; and

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(d) grant Ortho-Tain such other and further relief as may be permitted by law.

Respectfully submitted,

Neff Law Group PC

/s/ Nathan I. Neff

Attorney for Ortho-Tain, Inc.

Nathan I. Neff

Neff Law Group PC

414 N. Orleans, Suite 210

Chicago, Illinois 60654

(312) 667-4484

nathan@nefflawgroup.com

Case: 1:20-cv-04301 Document #: 1 Filed: 07/22/20 Page 34 of 34 PageID #:34