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Nutramax Laboratories Inc. v. Nutra Max Labs Inc.

United States District Court, D. South Carolina, Rock Hill Division

October 20, 2017

Nutramax Laboratories, Inc., Plaintiff,
v.
Nutra Max Labs Inc, and Namecheap, Inc. d/b/a WhoisGuard, Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND OPINION GRANTING MOTION FOR PRELIMINARY INJUNCTION [1]

         Plaintiff Nutramax Laboratories, Inc. (“Nutramax” and/or “Plaintiff”) filed this action against Defendants Nutra Max Labs Inc (“NMLI” and/or “Defendant”) and Namecheap, Inc. d/b/a WhoisGuard (“Namecheap”) (together “Defendants”) alleging claims of infringement on its registered trademark/intellectual property. (ECF No. 1.)

         This matter is before the court on Nutramax's unopposed Motion for Preliminary Injunction. (ECF No. 8.) After full consideration of Nutramax's Motion, Verified Complaint and all other matters presented, the court GRANTS Nutramax's Motion for Preliminary Injunction.

         I. FINDINGS OF FACT RELEVANT TO PENDING MOTION

         1. Nutramax researches, markets, distributes, and sells “high quality nutritional supplement products for use by humans and animals throughout the United States and internationally, under its trademarked name, NUTRAMAX LABORATORIES®.” (ECF No. 1 at 1 ¶ 1.)

         2. “Nutramax uses, owns, and has registered on the Principal Register of the United States Patent and Trademark Office the following mark relevant to this action (the “Mark”):

MARK

REG. NO.

REG. DATE

CLASS/GOODS

Nutramax Laboratories

2231260

March 16, 1999

Dietary food supplements”

(ECF No. 1 at 4 ¶ 18 (referencing ECF No. 18-2 at 1).)

         3. NMLI also “manufactures, markets, and distributes ‘natural' supplements . . . through the website www.nutramax-labs-inc.com (the “Infringing Website”).” (Id. at 1 ¶ 2.) Two of NMLI's products are at issue in this matter: “‘Steelcut Testosterone' and ‘Muscle Boost XT, ' which both purport to ‘not only result in improved muscle growth, but also improve[] many factions of the human body which lead to better muscle building, ' through the Infringing Website.” (Id.)

         4. NMLI “offers ‘free' trials” of “Steelcut Testosterone” and “Muscle Boost XT” and “represents that it will not charge the consumer the full bottle price until the trial period has expired.” (Id. at 2 ¶ 3.)

         5. “But consumers across the country complain that Defendant [NMLI] charges the approximately $95 full bottle price before the expiration of the trial period, and also complain that they are unable to obtain a refund or cancel the recurring monthly subscription that follows.” (Id.)

         6. “Bottles of Steelcut Testosterone and Muscle Boost XT contain contact information for ‘Nutra Max Labs Incorporated, P.O. [Box] 23793, St. Petersburg, FL 33742' and direct consumers to the Infringing Website, but do not contain a phone number to contact the manufacturer.” (Id. ¶ 5.)

         7. NMLI “employs various iterations of the Plaintiff Nutramax's name and the Mark, as defined herein, on its Infringing Website.” (Id.) “Thus, when consumers are dissatisfied with their Steelcut Testosterone or Muscle Boost XT products, they research ‘Nutra Max' or ‘Nutramax' and are directed to Plaintiff Nutramax's customer service department.” (Id.)

         8. As a result of the foregoing, consumers are fraudulently led to believe that Plaintiff Nutramax is the perpetrator of the scam.

         9. “Consumers mistakenly believe that Plaintiff Nutramax sells the Products on the Infringing Website and is the entity behind this scam.” (Id. at 7 ¶ 37.)

         10. NMLI “is using Nutramax's registered Mark to carry out this scam and to capitalize and profit on it to the detriment of Nutramax.” (Id. at ¶ 39.)

         11. On July 20, 2017, Nutramax filed a Verified Complaint alleging claims against NMLI for trademark infringement, trademark dilution, false designation of origin, common law fraud, violation of the South Carolina Unfair Trade Practices Act, and for preliminary and permanent injunction. (ECF No. 1 at 8 ¶ 42-10 ¶ 55 & 11¶ 64-13 ¶ 84.)

         12. Additionally, Nutramax alleged a claim against Defendants for violation of the Anti-Cybersquatting Consumer Protection Act (“ACPA”). (Id. at 10 ¶ 56-11 ¶ 63.)

         13. Thereafter, Nutramax filed a Motion for Preliminary Injunction (ECF No. 8) on July 26, 2017, and a Motion to Expedite Hearing on the Motion for Preliminary Injunction on July 28, 2017.[2] (ECF No. 11.)

         14. Nutramax served its Motion for Preliminary Injunction on Defendants on July 27, 2017. (ECF No. 9.)

         15. Nutramax and Namecheap resolved their dispute by stipulation on August 21, 2017. (ECF No. 15.) “Namecheap [] agreed to promptly transfer the Domain [nutramax-labs-inc.com] into Nutramax's possession upon being presented with either an Order from this Court, or a fully executed written agreement between Nutramax and the registered user of the Domain, directing such action.” (Id. at 1 ¶ 4.)

         16. Nutramax served a Notice of Hearing on NMLI regarding the Motion for Preliminary Injunction on September 21, 2017. (ECF No. 31-1.)

         17. On October 10, 2017, the court held a hearing on Nutramax's Motion for Preliminary Injunction. (ECF No. 32.) NMLI did not appear at the October 10, 2017 hearing.

         II. LEGAL STANDARD AND ANALYSIS

         A. Preliminary ...


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