Therapia Complaint

Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 1 of 13
Elizabeth Tedesco Milesnick, OSB No. 050933

emilesnick@idealegal.com
Andrea Selkregg, OSB No. 092595
aselkregg@idealegal.com
IDEALEGAL
2240 N Interstate Ave., Ste. 270
Portland, Oregon 97227
Telephone: (503) 902-5760
Attorneys for Plaintiff Therapia P.C.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
THERAPIA P.C., an Oregon corporation, Case No. 3:18-cv-909
Plaintiff, COMPLAINT FOR TRADEMARK

INFRINGEMENT
v.
(Unfair Competition; Common Law Trademark
THERAPYDIA, INC., a Delaware Infringement; Unjust Enrichment)
corporation,
DEMAND FOR JURY TRIAL
Defendant.
Plaintiff Therapia P.C. alleges as follows:
INTRODUCTION
1. This is an action at law and in equity for trademark infringement and
unfair competition under the Trademark Act of 1946, 15 USC §§ 1051 et seq. (2002)
(“Lanham Act”); and for trademark infringement and unjust enrichment at common law.
Page 1 - COMPLAINT FOR TRADEMARK INFRINGEMENT

(Unfair Competition; Common Law Trademark Infringement; Unjust Enrichment)
I DEA L EGAL LLC
2240 N. INT E RST AT E AVE NUE , SUIT E 270
PO RT LAN D, ORE GON 97227
T . 503-902-5760 | E MILE SNICK@ IDE ALE GA L. COM
2. Plaintiff Therapia P.C. (“Therapia”) has built up the THERAPIA
trademark over the course of seven years, providing alternative medical services such as
acupuncture, chiropractic therapy, massage, fertility consultation and treatment, and herbal
medicine in Portland, Oregon with the utmost attention to customer service. At a time when
Therapia’s presence was readily discoverable on the internet, defendant Therapydia, Inc.
(“Therapydia”) began using the mark THERAPYDIA for physical therapy and wellness
consulting services, first in California and then in Portland, Oregon with an aggressive
corporate marketing campaign, willfully infringing the THERAPIA trademark as alleged
below, and causing consumer confusion with respect to the source, sponsorship, or approval
of both Therapia and Therapydia’s goods and services, causing irreparable harm to
Therapia’s business, goodwill, and reputation for warm, collaborative, and thoughtful patient
care.
JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction under Section 39 of the
Lanham Act, 15 USC § 1121, and under 28 USC §§ 1331 and 1338. This Court has
jurisdiction over Therapia’s related state and common-law claims pursuant to 28 USC
§§ 1338 and 1367.
4. This Court has personal jurisdiction over Therapydia because, on
information and belief, Therapydia owns and operates four physical therapy clinics in and
around Portland, Oregon, and has engaged in acts or omissions within this State, causing
injury within this State, or has otherwise made or established contacts within this State

I DEA L EGAL LLC
sufficient to permit the exercise of personal jurisdiction. Furthermore, Therapydia is
registered to do business in Oregon and is for that reason also subject to personal jurisdiction
in Oregon.
5. This District is a proper venue pursuant to 28 USC § 1391(b)(2)
because a substantial part of the events or omissions giving rise to plaintiffs’ claims occurred
in this District.
THE PARTIES
6. Plaintiff Therapia is a corporation organized and existing under the
laws of the State of Oregon having its principal place of business at 2505 SW Spring Garden,
Suite 100, Portland, Oregon 97219.
7. On information and belief, defendant Therapydia is a corporation
organized and existing under the laws of the State of Delaware having its principal place of
business at 18 E. Blithedale Avenue, Suite 21, Mill Valley, California 94941.
FACTS COMMON TO ALL CLAIMS FOR RELIEF
8. President Tara Nikzi founded the Therapia Wellness Clinic in Portland,
Oregon in April 2011, using the mark THERAPIA to provide alternative medical services
such as acupuncture, chiropractic therapy, massage, fertility consultation and treatment, and
herbal medicine. Since that time, the practice has grown to 10 providers, with clients
throughout Oregon and Southwest Washington, treating medical conditions including,
among others, back, neck, shoulder, arm, and hip pain.

I DEA L EGAL LLC
9. Therapia used the THERAPIA mark to promote the clinic’s services
online as early as April 12, 2011, as well as on social media including Facebook, YouTube,
and Twitter, and beginning in 2012, Instagram.
10. Therapia has common law rights in the mark THERAPIA for medical
and alternative medicine services, such as acupuncture, chiropractic therapy, massage,
fertility consultation and treatment, and herbal medicine, by virtue of Therapia’s continuous
use of the mark beginning in April 2011.
11. Therapia is known in Oregon and Southwest Washington as a source
for collaborative and thoughtful care in a warm, serene environment with attention to design,
beauty, and professionalism. Over the years, the THERAPIA mark has become a valuable
brand and Therapia has established substantial goodwill in connection with the brand.
12. Therapia has expended considerable time, effort, and money in
advertising and publicizing its goods and services bearing the THERPIA mark. In addition
to its social media advertising, Therapia has advertised on Yelp and Google; distributed
pamphlets and flyers throughout Portland and Beaverton, Oregon; held demonstrations and
had booths at health and insurance benefit fairs and other events; sent regular newsletters to
its e-mail community; taken out full-page advertisements in a local coupon book; been listed
in insurance provider’s directories for alternative medical services; and been an in-network
provider of alternative medical services since 2011. Therapia was recently recognized as one
of the Best Natural or Alternative Medicine Clinics by Portland’s weekly newspaper.

I DEA L EGAL LLC
13. As early as April 2011, and continually thereafter, an internet search for
the word “therapia” returned several references to Therapia, with its search-optimized
website on the first page of the search results.
14. On information and belief, on or about October 2013, Therapydia
opened a physical therapy clinic in Portland, Oregon, after having opened one or more clinics
in California later than April 2011. On information and belief, the East Portland, Oregon
clinic provided and continues to provide physical therapy, so-called “wellness assessments,”
sports rehabilitation, pelvic floor therapy, women’s health physical therapy, functional
movement screening, and work rehabilitation, among others. On information and belief, the
opening of the Southeast Portland Therapydia clinic featured acupuncture demonstrations.
15. On information and belief, Therapydia opened its Lake Oswego,
Oregon clinic on or about October 2016; its Beaverton, Oregon clinic on or about September
2017; and another Portland, Oregon clinic on or about March 2018. Each location offers the
same therapies as the East Portland Therapydia clinic, all targeting many of the same areas as
the therapies offered at Therapia, including back, neck, shoulder, arm, leg, and hip pain. The
nearest Therapydia clinic is just 4.5 miles away from Therapia.
16. Therapia learned of Therapydia in approximately mid-2016 when a
patient informed Ms. Nikzi that he had received physical therapy at a clinic called
“Therapydia,” commenting that the clinic’s name was close to THERAPIA. The patient told
Ms. Nikzi that he had spoken with the manager of the Therapydia location about Therapia,

I DEA L EGAL LLC
that the manager already knew about Therapia, and that the two had commented on the
similarity between the THERAPIA and THERAPYDIA names.
17. In January 2018, Therapia began to encounter instances of actual
consumer confusion between the two clinics and their associated services, with many
patients calling Therapia to schedule appointments with Therapydia and consumers
mistaking Therapydia advertisements for Therapia advertisements. In April 2018, one
patient who had scheduled appointments with both Therapia and Therapydia within one
week of one another, believed Therapia’s call confirming her appointment was from
Therapydia, and became frustrated that the company had called with an incorrect
appointment date. She started to cancel the appointment and then realized that the call was
from Therapia. When she arrived for her appointment at Therapia, she commented that the
names were too similar and had caused her confusion.
18. On March 1, 2018, Therapia filed an application with the United States
Patent and Trademark Office (“USPTO”), Serial No. 87817103, to register THERAPIA for
“medical and alternative medicine services” in International Class 44.
19. On information and belief, Therapydia aggressively advertises its
physical therapy and wellness services over the internet, through videos and other advertising
on social media, on the radio in advertisements and interviews, in newspaper articles and
spotlights, through athlete sponsorships, corporate partnerships, and others. On information
and belief, Therapydia now has 11 clinics around the United States, each of which has a
modern, corporate-type aesthetic.

I DEA L EGAL LLC
20. Therapydia’s widespread advertising and promotion, and the location
of its clinics throughout the Portland, Oregon area threaten to compromise Therapia’s
reputation for warm, collaborative, and thoughtful patient care, and have already led to
significant consumer confusion.
21. On information and belief, Therapydia knowingly, willfully, and
intentionally adopted and used its confusingly similar THERAPYDIA mark.
FIRST CLAIM FOR RELIEF
(Infringement of Unregistered Mark THERAPIA)
22. Therapia incorporates the allegations of the foregoing paragraphs as
though fully set forth herein.
23. Therapydia’s use in commerce of THERAPYDIA for the physical
therapy and wellness consulting services has caused and is likely to continue to cause
confusion with Therapia’s use of the trademark THERAPIA for alternative medicine
services, infringing plaintiff’s rights in the THERAPIA trademark.
24. Therapydia knew or had reason to know of plaintiffs’ ownership and
use of the THERAPIA mark and that its use of the mark in connection with physical therapy
and wellness consulting services would infringe Therapia’s mark in violation of
Section 43(a) of the Lanham Act, 15 USC § 1125(a).
25. Therapydia’s actions have caused Therapia irreparable harm and,
unless enjoined, Therapydia’s actions will continue to cause irreparable harm to Therapia’s
business, reputation, and goodwill.

I DEA L EGAL LLC
26. As a result of the trademark infringement as described above, Therapia
is entitled to relief, including injunctive relief, recovery of Therapydia’s profits, actual
damages, reasonable royalty, enhanced profits and damages, costs, and reasonable attorney
fees pursuant to 15 USC §§ 1125(a), 1116, and 1117.
SECOND CLAIM FOR RELIEF
(Federal Unfair Competition)
28. Therapydia’s use of its THERAPYDIA mark is a false designation of
origin, which is likely to cause and has caused confusion and mistake, and is likely to
deceive and has deceived as to the affiliation, connection, or association of Therapydia with
Therapia, and of Therapia with Therapydia.
29. Therapydia’s actions as alleged herein constitute the use in commerce
of false designations of origin and false or misleading descriptions or representations,
tending to falsely or misleadingly describe and/or represent Therapydia’s products as those
of Therapia, directly and/or secondarily, in violation of 15 USC § 1125(a), and tending to
falsely or misleadingly describe and/or represent Therapia’s products as those of Therapydia.
30. These actions have caused Therapia irreparable harm and, unless
enjoined, Therapydia’s actions will continue to cause irreparable harm to plaintiff’s business,
reputation, and goodwill.

I DEA L EGAL LLC
31. As a result of the unfair competition as described above, Therapia is
entitled to relief, including injunctive relief, recovery of Therapydia’s profits, actual
damages, reasonable royalty, enhanced profits and damages, costs, and reasonable attorney
fees pursuant to 15 USC §§ 1125(a), 1116, and 1117.
THIRD CLAIM FOR RELIEF
(Common Law Trademark Infringement and Unfair Competition)
33. Therapydia’s actions as described herein constitute common law
trademark infringement and unfair competition in violation of the common law of the State
of Oregon, and have caused and, unless enjoined by this Court, will continue to cause a
likelihood of confusion among consumers, in addition to injury to Therapia’s valuable
reputation and goodwill associated with the THERAPIA mark.
34. These actions have caused Therapia irreparable harm and, unless
enjoined, Therapydia’s actions will continue to cause irreparable harm to Therapia’s
business, reputation, and goodwill.
35. As a result of the common law trademark infringement and unfair
competition described above, Therapia is entitled to relief, including injunctive relief,
recovery of Therapydia’s profits, reasonable royalty, actual damages, and costs.
///
///
///

I DEA L EGAL LLC
FOURTH CLAIM FOR RELIEF
(Unjust Enrichment)
37. In committing the acts alleged herein, Therapydia has willfully and
knowingly copied and infringed plaintiff’s THERAPIA mark for its own purposes and, as a
direct and proximate result of its improper acts, Therapydia has been unjustly enriched.
38. Plaintiffs have suffered, and will continue to suffer, loss of profits by
virtue of Therapydia’s conduct and its improper acts have caused and are continuing to cause
irreparable injury to the reputation and goodwill that Therapia has established over the years.
39. Plaintiffs are therefore entitled to an award of Therapydia’s unjust
profits and Therapia’s lost profits.
PRAYER FOR RELIEF
WHEREFORE, Therapia prays for the following relief:
1. A judgment in favor of plaintiffs requiring Therapydia to account for
and pay to plaintiff all profits wrongfully derived by Therapydia through its unlawful acts set
forth herein and awarding Therapia actual damages and/or a reasonable royalty, and
enhanced profits and damages;
2. An order that Therapydia and all its agents, officers, employees,
representatives, successors, assigns, attorneys, and all other persons acting for, with, by,
through, or under authority from Therapydia, or in concert or participation with Therapydia,
are enjoined permanently from:

I DEA L EGAL LLC
a. using the THERAPYDIA mark or any other confusingly similar mark,
including but not limited to THERAPIA, on or in connection with
Therapydia’s goods or services;
b. using any trademark, service mark, name, logo, design, or source
designation of any kind on or in connection with Therapydia’s goods or
services that is a copy, reproduction, colorable imitation, or simulation of,
or confusingly similar to the trademarks, service marks, names, or logos of
Therapia;
c. using any trademark, service mark, name, logo, design, or source
services that is likely to cause confusion, mistake, deception, or public
misunderstanding that such goods or services are produced or provided by
Therapia, are sponsored or authorized by Therapia, or are in any way
connected or related to Therapia; and
d. using any trademark, service mark, name, logo, design, or source
services that dilutes, tarnishes, or is likely to dilute or tarnish, the
distinctiveness of the trademarks, service marks, names, or logos of
Therapia;
3. An order enjoining Therapydia from using the domain name
www.therapydia.com and ordering Therapydia to transfer the domain to Therapia;

I DEA L EGAL LLC
4. An award to Therapia of its costs (including expert fees),
disbursements, and reasonable attorney fees incurred in this action, together with interest,
including prejudgment interest, pursuant to 15 USC § 1117, ORS 647.105, and the equity
powers of this Court; and
5. Such other and further relief as the Court finds just and equitable.
DATED this 24th day of May, 2018.
IDEALEGAL
/s/ Elizabeth Tedesco Milesnick

E-mail: emilesnick@idealegal.com
E-mail: aselkregg@idealegal.com
Phone: (503) 902-5760

I DEA L EGAL LLC
DEMAND FOR JURY TRIAL
Plaintiff Therapia P.C. hereby demands a trial by jury on all issues so triable.
DATED this 24th day of May, 2018.
IDEALEGAL
/s/ Elizabeth Tedesco Milesnick

E-mail: emilesnick@idealegal.com
E-mail: aselkregg@idealegal.com
Phone: (503) 902-5760

I DEA L EGAL LLC

Therapia Complaint

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Therapia Complaint

Uploaded by

Copyright:

Available Formats

Case 3:18-cv-00909-SI Document 1 Filed 05/24/18 Page 1 of 13

Elizabeth Tedesco Milesnick, OSB No. 050933

Attorneys for Plaintiff Therapia P.C.

UNITED STATES DISTRICT COURT

THERAPIA P.C., an Oregon corporation, Case No. 3:18-cv-909

Plaintiff, COMPLAINT FOR TRADEMARK

Plaintiff Therapia P.C. alleges as follows:

1. This is an action at law and in equity for trademark infringement and

Page 1 - COMPLAINT FOR TRADEMARK INFRINGEMENT

2. Plaintiff Therapia P.C. (“Therapia”) has built up the THERAPIA

corporate marketing campaign, willfully infringing the THERAPIA trademark as alleged

JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction under Section 39 of the

§§ 1338 and 1367.

4. This Court has personal jurisdiction over Therapydia because, on

Page 2 - COMPLAINT FOR TRADEMARK INFRINGEMENT

sufficient to permit the exercise of personal jurisdiction. Furthermore, Therapydia is

5. This District is a proper venue pursuant to 28 USC § 1391(b)(2)

6. Plaintiff Therapia is a corporation organized and existing under the

Suite 100, Portland, Oregon 97219.

7. On information and belief, defendant Therapydia is a corporation

business at 18 E. Blithedale Avenue, Suite 21, Mill Valley, California 94941.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

8. President Tara Nikzi founded the Therapia Wellness Clinic in Portland,

throughout Oregon and Southwest Washington, treating medical conditions including,

among others, back, neck, shoulder, arm, and hip pain.

Page 3 - COMPLAINT FOR TRADEMARK INFRINGEMENT

9. Therapia used the THERAPIA mark to promote the clinic’s services

and Twitter, and beginning in 2012, Instagram.

and alternative medicine services, such as acupuncture, chiropractic therapy, massage,

use of the mark beginning in April 2011.

11. Therapia is known in Oregon and Southwest Washington as a source

12. Therapia has expended considerable time, effort, and money in

of the Best Natural or Alternative Medicine Clinics by Portland’s weekly newspaper.

Page 4 - COMPLAINT FOR TRADEMARK INFRINGEMENT

website on the first page of the search results.

14. On information and belief, on or about October 2013, Therapydia

opening of the Southeast Portland Therapydia clinic featured acupuncture demonstrations.

15. On information and belief, Therapydia opened its Lake Oswego,

nearest Therapydia clinic is just 4.5 miles away from Therapia.

16. Therapia learned of Therapydia in approximately mid-2016 when a

Page 5 - COMPLAINT FOR TRADEMARK INFRINGEMENT

similarity between the THERAPIA and THERAPYDIA names.

17. In January 2018, Therapia began to encounter instances of actual

patients calling Therapia to schedule appointments with Therapydia and consumers

mistaking Therapydia advertisements for Therapia advertisements. In April 2018, one

names were too similar and had caused her confusion.

“medical and alternative medicine services” in International Class 44.

19. On information and belief, Therapydia aggressively advertises its

spotlights, through athlete sponsorships, corporate partnerships, and others. On information

modern, corporate-type aesthetic.

Page 6 - COMPLAINT FOR TRADEMARK INFRINGEMENT

20. Therapydia’s widespread advertising and promotion, and the location

significant consumer confusion.

21. On information and belief, Therapydia knowingly, willfully, and

intentionally adopted and used its confusingly similar THERAPYDIA mark.

FIRST CLAIM FOR RELIEF

(Infringement of Unregistered Mark THERAPIA)

22. Therapia incorporates the allegations of the foregoing paragraphs as

though fully set forth herein.

23. Therapydia’s use in commerce of THERAPYDIA for the physical

services, infringing plaintiff’s rights in the THERAPIA trademark.

24. Therapydia knew or had reason to know of plaintiffs’ ownership and

and wellness consulting services would infringe Therapia’s mark in violation of