Condemned Labz Accused of Trademark Infringement of Dietary Supplement Product

UPDATE: In-house counsel on behalf of Condemned Labz provided the following statement to Law Street:

“As provided in Condemned Labz’ Answer, Third Party Complaint & Counterclaims, Condemned Labz’ position is (a) that Condemned Labz, through their President and Owner Michael Jirovec, is the common law owner of the Trademark to Arsyn, formerly known as Arson, (b) that co-plaintiff Blackstone Labs, their owner P.J. Braun, and his business partner Jared Wheat are well aware of this, (c) that this information was shared with P. J. Braun while he was a part owner of VBS Labs, LLC in February 2016, under a confidentiality agreement, and (d) that all good will and development of the brand is the property of Michael Jirovec and Condemned Labz.”

On Wednesday, in the Northern District of Georgia, Jared R. Wheat and Blackstone Labs LLC filed a complaint against Supplement Science Corp., doing business as Condemned Labz, alleging trademark infringement of the plaintiffs’ Arson product. An amended complaint was filed Thursday with no substantive changes.

Wheat owns the trademark for Arson for dietary and nutritional supplements, which was registered Nov. 14, 2017, the complaint said; he granted Blackstone, a Florida dietary supplements company, a license to use the registered trademark. The complaint said that the trademark, through “long-term use and extensive promotion … has established significant goodwill among consumers of dietary supplements and has become an extremely valuable asset.”

Condemned Labz, a New York dietary supplements company, has been selling a product named Arsyn, also a dietary supplement, the filing said. The plaintiffs claimed that the “product name is confusingly similar in appearance, sound, and meaning” to that of registered trademark Arson, such that consumers who come across both Arsyn and Arson “are, and are likely to be, confused as to the source of the goods.”

The complaint recounted that on Feb. 22, 2019, Condemned Labz tried to register an application for Arsyn that was refused by the United States Patent and Trademark Office (USPTO), on the bases that: “The marks are essentially phonetic equivalents and thus sound similar”; “the goods in the application and registration are nearly identical”; “(T)here is a likelihood of confusion and registration is refused,” according to the USPTO. On July 6, 2020, the plaintiffs’ counsel sent a letter alerting Condemned Labz of Wheat’s exclusive rights to the Arson trademark.

Despite the USPTO’s refusal and the plaintiffs’ letter, the plaintiffs alleged, the defendant continued selling its Arsyn products, “damag(ing) the value” of the registered Arson trademark “by confusing, and thus harming, consumer perception of the ARSON® dietary supplement.”

The plaintiffs alleged trademark infringement, violation of Georgia’s Deceptive and Unfair Trade Practices Act, and unfair competition under Georgia Common Law, requesting monetary, injunctive, and other reasonable relief, punitive damages, destruction of Condemned Labz’s “confusing, misleading, and deceptive goods and materials,” and a jury trial.

The plaintiffs are represented by the Law Office of Arthur W. Leach.