Case 0:13-cv-60978-XXXX Document 1 Entered on FLSD Docket 04/26/2013 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION CASE NO. _________________ GENERAL NUTRITION INVESTMENT COMPANY and GENERAL NUTRITION CENTERS, INC., Plaintiffs, v. GOLD N CONNECTION, LLC Defendant. COMPLAINT Plaintiffs General Nutrition Investment Company and General Nutrition Centers, Inc. (collectively GNC), by counsel, allege as follows for their Complaint against Defendant Gold N Connection, LLC (GNC Pawn): INTRODUCTION 1. GNC brings this action for federal and state trademark dilution to protect its Jury Trial Demanded

valuable and world famous trademark GNC (the GNC Mark) and the enormous amount of consumer goodwill and brand equity it has developed in the GNC Mark over nearly 40 years. GNC has used the GNC Mark in connection with its retail sale of nutritional products since at least as early as 1963. Today, GNCs business operations involve more than 8,100 retail locations spanning six continents and billions of dollars in sales. The GNC brand, represented most prominently by the GNC Mark and the bold red stylized version of that mark shown below (the Stylized GNC Mark; collectively, GNCs Marks), is among the most well-known brands

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in America and commands exceptional consumer goodwill thanks to GNCs overall reputation for excellence.

2.

GNCs trademark rights are threatened by GNC Pawns recent adoption and use

of the name GNC Pawn and the following stylization in connection with a small chain of pawn shops.

That usage is likely to dilute GNCs famous GNC Mark by blurring its distinctiveness. GNC Pawns use of the GNC Pawn name, alone or in its stylized, red logo form, also is likely to tarnish GNCs famous GNC Mark and its stylized red counterpart, by associating those marks with goods and services that do not meet GNCs exacting standards and with an industry that, as GNC Pawn has acknowledged, has a negative public image. GNC accordingly brings this action to stop the damage caused by GNC Pawns ongoing dilution and to protect the enormous investment of time, money and effort GNC has made in the GNC brand and the GNC Mark. PARTIES 3. Plaintiff General Nutrition Investment Company (GNIC) is a corporation

organized and existing under the laws of the State of Arizona, having a place of business at 1011 Centre Road, Suite 322, Wilmington, Delaware 19805. 4. Plaintiff General Nutrition Centers, Inc. (General Nutrition Centers) is a

corporation organized and existing under the laws of the State of Delaware, having its principal place of business at 300 Sixth Avenue, Pittsburgh, Pennsylvania 15222. General Nutrition Centers is an indirect parent of GNIC. -2-

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5.

Defendant Gold N Connection, LLC is a limited liability company organized and

existing under the laws of the State of Florida with a registered address of 1311 South Dixie Highway No. 17E, Pompano Beach, Florida 33060. JURISDICTION AND VENUE 6. This Court has jurisdiction over the subject matter of this lawsuit under 15 U.S.C.

1121 and 1125 and under 28 U.S.C. 1331 and 1338. 7. GNC Pawn is organized and existing under the laws of the State of Florida and

has its principal place of business within this judicial district and division. For at least these reasons, GNC Pawn is subject to personal jurisdiction in this Court. 8. Venue is proper in this judicial district under 28 U.S.C. 1391(b) and (c) because

GNC Pawn is subject to personal jurisdiction in this judicial district and a substantial part of the events giving rise to the claims occurred in this judicial district. FACTS COMMON TO ALL COUNTS A. GNCs Business Is Built Around GNCs Marks 9. GNC is the largest global specialty retailer of nutritional products, including

vitamin, mineral, herbal, and other specialty supplements and sports nutrition, diet, and energy products. Either directly or through affiliates, franchisees, or licensees, GNC opens, owns, and/or operates retail nutrition, health, and/or fitness stores. GNC stores sell, among other things, vitamin and mineral supplements, sports nutrition products, herbs, health foods, cosmetics, and miscellaneous health care products, diet products, sports accessories, fitness products, and specialty workout apparel and are staffed by employees dedicated exclusively to serving customers for these products and services. GNC has more than 8,100 retail locations

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worldwide, including more than 6,100 retail locations throughout the United States (including 336 in Florida) and franchise operations in 54 countries around the world. 10. GNC sets the standard for excellence in the nutritional supplement industry.

GNC demands truth in labeling and ingredient safety and potency while remaining on the cutting edge of nutritional science. It is devoted to improving the quality of its customers lives by providing better nutritional information, encouraging healthy decisions and supporting healthier lifestyles. 11. GNCs retail stores are branded under the marks GNC, GNC GENERAL

NUTRITION CENTERS and/or GNC LIVE WELL. The common core element of GNCs retail store branding is its famous GNC Mark. 12. GNC has used the GNC Mark for more than 40 years. It is the most visible

symbol of GNCs brand identity in the marketplace and instantly identifies and distinguishes GNC and its products and services in the minds of consumers. 13. GNCs most prominent use of the GNC Mark is the Stylized GNC Mark:

The bold red color of the Stylized GNC Mark is one of its defining features. 14. GNC has used the Stylized GNC Mark, or variants thereof, since at least as early

as 1990. Since its debut, the Stylized GNC Mark has been used in virtually all of GNCs advertising in the United States and abroad. Some version of the Stylized GNC Mark is prominently featured in and on every GNC store in the United States, and some form of it is emblazoned on every GNC-branded product that GNC manufactures and distributes.

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15.

Over the more than four decades in which GNC has used the GNC Mark, it has

invested enormous amounts of time, energy and money in developing a reputation for overall excellence in its products and services, cutting edge nutritional supplement, top-quality products, and exceptional customer service, as well as enormous consumer goodwill, all of which are reflected in GNCs Marks. GNCs Marks, and the excellent reputation embodied in those marks, are critical to GNCs business and are an integral part of GNCs brand identity. 16. GNC takes its reputation for developing cutting edge nutritional supplements very

seriously. It spends millions of dollars annually researching and developing leading-edge products and bringing them to market. GNCs researchers and scientists conduct many of their own studies on product ingredients to authenticate each particular claim made or benefit promoted before passing products on to GNCs customers. 17. Similarly, GNC devotes enormous resources to maintaining its reputation for

producing the highest quality nutritional supplements possible. GNC owns and operates its own state-of-the-art manufacturing facilities to ensure the high quality of its products. Every GNC product sold under GNCs Marks undergoes numerous quality and safety tests and is subjected to multiple checks before it arrives on store shelves. 18. GNCs commitment to excellence extends to the retail environment, where GNC

strives to deliver a shopping experience that consistently exceeds customer expectations. GNC commits substantial resources to ensuring that its sales associates are up-to-date on the latest information regarding nutrition and fitness. GNC has even gone so far as to create GNC University, a series of e-learning courses developed in cooperation with the University of Florida to help ensure that GNC sales associates are knowledgeable and able to answer customers questions.

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19.

Thanks to its exacting standards and rigorous commitment to innovation, quality

and consumer experience, GNC has developed an excellent reputation with the consuming public that is reflected in GNCs Marks. 20. GNC invests tens of millions of dollars annually to build, promote and protect that

reputation. Over the last four years alone, GNC has spent more than $225 million advertising and promoting its goods and services under GNCs Marks in the United States. GNCs Marks have recently been featured prominently in two high-profile, multi-million dollar nationwide campaigns that have garnered significant media attention. 21. GNC prominently advertises goods and services under GNCs Marks through a

wide array of high-visibility marketing channels. For example, print advertising featuring GNCs Marks have appeared in Cooking Light, Entertainment Weekly, ESPN Magazine, Esquire, Glamour, GQ, InStyle, Martha Stewart Living, Mens Health, People, Self, Shape, Vanity Fair, Womens Health and Womans World. GNCs Marks have also been featured in commercials on many television networks, including ABC, CBS, NBC, Fox, FX, ESPN, ESPN2, Bravo, Discovery, SyFy, TLC, TNT, and the Travel Channel. 22. GNC also prominently features GNCs Marks through various channels of

outdoor advertising. For example, GNCs Marks have appeared on huge billboard advertisements in New Yorks Times Square and Fashion District, outside the Beverly Center in Los Angeles, and in Miamis Entertainment and Design districts, among many other places. GNC also has over 100 tractor trailers that prominently display GNCs Marks while transporting products across the country, including Florida. 23. GNC also promotes GNCs Marks through high-profile sponsorships of athletic

competitions, events and athletes. Since 2001, it has been the title sponsor for the Arnold Sports

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Festival, the worlds largest multi-sport weekend event. In 2012, GNC teamed with ESPN as the presenting sponsor and exclusive sports nutrition provider for the 2012 ESPNHS Games, a threeweek long elite level event and competition featuring high school athletes from around the United States. GNC has also worked with and/or sponsored high profile athletes including Pittsburgh Steelers great Jerome Bettis and Olympic Gold Medalist Mary Lou Retton, as well as many professional weightlifters, Major League Baseball players and other National Football League players. 24. GNCs efforts at developing and promoting its brand over the course of four

decades have paid substantial dividends and earned it significant recognition. For example, GNC has been named the leading vitamin franchise in the industry for 20 years, and is consistently ranked among the top franchises in any industry in America. 25. Today, GNC is among the most recognized brands in the United States, with

consumer recognition comparable to other elite brands such as Wal-Mart and Target. Consumers know the GNC brand and GNCs Marks and trust GNC to deliver top quality products and excellent customer service. 26. Thanks in part to GNCs powerful brand and the exceptional reputation embodied

in GNCs Marks, GNC has seen enormous growth in recent years. Since 2008, GNC has added almost 1,500 retail locations to its ever-growing network of stores worldwide. In 2011, GNCs annual revenue topped the $2 billion mark for the first time, exceeding $2.4 billion in 2012. GNCs 2012 worldwide revenues represented an increase of almost 47% from its worldwide revenues in 2008. GNCs domestic revenue growth has been equally as impressive, with annual revenue in the United States increasing from just over $1.1 billion in 2008 to nearly $1.7 billion in 2012.

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B. GNC Protects GNCs Marks 27. To protect GNCs valuable brand and trademarks, GNIC, General Nutrition

Centers wholly-owned indirect intellectual property holding subsidiary, has obtained more than 180 registrations for the GNC Mark in countries around the world. GNIC licenses those registered marks exclusively to GNC and its affiliates, franchisees, distributors and licensees. 28. Included in GNICs registrations is United States Trademark Registration No.

2,180,647 for the GNC Mark in International Class 5 for dietary supplements. This registration issued on August 11, 1998, and became incontestable in 2003 under section 15 of the Lanham Act, 15 U.S.C. 1065. It remains in full force and effect and is conclusive evidence of the validity of the GNC Mark, of GNICs registration and ownership of the GNC Mark, and of GNICs exclusive right to use the GNC Mark. A copy of the certificate of registration for this mark is attached as Exhibit 1. 29. GNIC also owns United States Trademark Registration No. 3,429,065 for the

GNC Mark in International Class 5 for [p]owdered nutritional supplement drink mix containing one or more of the following ingredients, soy, oat oil, creatine, soy oil, dextrose, protein, non-fat milk, milk protein, or whey protein concentrate, in International Class 29 for [d]rinks based in yoghurt, non-fat milk, and milk drinks containing fruits, soy, oat oil, creatine, soy oil, dextrose, protein, milk protein, whey protein concentrate, non-fat milk concentrate featuring fruit, vegetable, chocolate, vanilla flavorings, chocolate flavorings, vanilla, fruit and vegetable flavorings; protein based, nutrient dense snack bars, consisting of soy, oat oil, creatine, soy oil, dextrose, non-fat milk, yogurt, milk, protein, whey protein, featuring, chocolate, vanilla, fruit, vegetable flavored soy, oat oil, creatine, soy oil, dextrose, whey protein, and non-fat milk, in International Class 32 for [d]rinks and smoothies, namely, fruit drinks, vegetable drinks,

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smoothies, and bottled water; fruit drinks, energy drinks, sport drinks, smoothies, and bottled water, featuring chocolate, vanilla, fruit, vegetable flavor; fruit drinks, energy drinks, sport drinks, smoothies, and bottled water all containing secondary components, namely, soy, oat oil, soy oil, creatine, dextrose, whey protein, non-fat milk, yogurt, milk, milk protein; smoothie concentrates containing secondary components, namely, soy, oat oil, creatine, soy oil, dextrose, whey protein, non-fat milk, milk protein, whey protein concentrate, featuring chocolate, vanilla, fruit, vegetable flavored soy, oat oil, creation, soy oil, dextrose, milk, yogurt, whey protein, and non-fat milk concentrate, and in International Class 35 for [r]etail store services featuring health foods, dietary supplements, nutritional supplements, herbs, vitamins, sports nutrition products, fitness products and apparel, cosmetics, body care, diagnostic exercise or aromatherapy products. This registration issued on May 20, 2008, and remains in full force and effect. It is prima facie evidence of the validity of the GNC Mark, and of GNICs registration, ownership and exclusive right to use the GNC Mark. A copy of the certificate of registration for this mark is attached as Exhibit 2. 30. GNCs Marks are inherently distinctive. Alternatively, as a result of GNC's

longstanding use and promotion, GNC's Marks have acquired secondary meaning, becoming widely recognized by the general consuming public and the trade as designations of source identifying GNC and its products and services. 31. As a result of GNCs continuous and extensive use, sales, advertising and

promotions, GNCs Marks have become extremely valuable and tremendously important assets belonging exclusively to GNC, symbolizing GNCs highly successful products and services and the goodwill appurtenant thereto. GNCs Marks are well known, highly distinctive and famous under the Lanham Act, 15 U.S.C. 1125(c), and became famous long before GNC Pawn

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commenced the actions complained of in this Complaint. The fame of the GNC Mark has been recognized by at least one United States District Court. See Gen. Nutrition Inv. Co. v. <gnckorea.com>, No. 1:09-cv-04476, Doc. No. 17, at 11 (E.D. Va. July 13, 2009) (report & recommendations) adopted by Gen. Nutrition Inv. Co. v. <gnckorea.com>, Doc. No. 20 (E.D. Va. Aug. 10, 2009). C. GNC Pawns Likely Dilution of GNCs Marks 32. GNC Pawn operates a chain of five pawn shops in southern Florida, with

locations in Pompano Beach, Fort Lauderdale, Hollywood, Margate and Oakland Park. 33. Upon information and belief, beginning with its first location in Pompano Beach,

GNC Pawn has grown its business by purchasing and rebranding existing pawn shops. GNC Pawn originally marketed and operated its pawn shop business under its corporate name, Gold N Connection, until late 2011, when it undertook a rebranding effort in connection with the acquisition of its fifth location. GNC Pawn therefore adopted the name GNC Pawn as its public identity for its chain. 34. The GNC Pawn name is highly similar to the famous GNC Mark in that it

incorporates that mark wholesale, and merely adds the generic term pawn. 35. GNC Pawn also adopted a new logo as part of its rebranding. Just as it copied

wholesale from the famous GNC Mark in its selection of the GNC Pawn name, GNC Pawn copied from the famous Stylized GNC Mark for its new logo. As can be seen below, the GNC Pawn logo uses similar block-style lettering as the Stylized GNC Mark, and the dominant element of GNC Pawn logo copies the bold red color of the Stylized GNC Mark.

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36.

Upon information and belief, GNC Pawn now uses the GNC Pawn name and logo

almost exclusively to promote its pawn shops in the southern Florida area. Upon information and belief, all of GNC Pawns advertising and marketing now uses the GNC Pawn name and the red GNC Pawn logo. Examples of such uses are pictured below:

37.

GNC has many stores in the Fort Lauderdale metropolitan area. GNC Pawns

shops and signage pictured above are located within approximately five miles of 13 GNC stores, all of which prominently use GNCs Marks in their signage. GNCs Marks appear in even closer proximity to the GNC Pawn name and logo, as GNC Pawn re-sells GNC gift cards through its website and physical locations. - 11 -

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38.

GNC Pawn has also established a substantial online presence using the GNC

Pawn name and logo. For example, GNC Pawn operates a website at the second-level Internet domain www.gncpawn.com, where it prominently uses variations of the red GNC Pawn name and logo. GNC Pawn also uses the GNC Pawn name and logo extensively on its Facebook and Twitter pages, as well as on its eBay store. 39. Emphasizing the importance of the GNC element of the GNC Pawn name and

logo, GNC Pawn has adopted the GNC element as a house mark that it uses in various ways. For example, the online retail section of GNC Pawns website, which allows customers to browse its inventory and purchase items, uses the name GNC Store. GNC Pawn also refers to itself as GNC in advertising, such as in a March 7, 2013 tweet that reads: THE WEEKEND IS COMING AND YOU HAVE NO CA$H? GNC HAS IT IN A FLA$H!!! LOANS FROM $10 TO $100,000!!! GNC Pawn has similarly used GNC as a standalone reference to itself in several other tweets. Most of these tweets occurred after GNC Pawn had actual notice of GNCs claims of dilution. 40. GNC Pawns adoption and widespread use of the GNC Pawn name and logo is

likely to dilute GNCs Marks by blurring and impairing the distinctiveness of those famous marks. GNC Pawns use of the GNC element of the GNC Pawn name and logo as a house mark exacerbates this likelihood of dilution by using GNC as a standalone indicator of source that consumers may begin to associate with both GNC and GNC Pawn. 41. Furthermore GNC Pawns use of the GNC Pawn name and logo is likely to

tarnish the reputation of GNCs Marks by associating them with goods and services that do not live up to GNCs high standards and with an industry that has a poor image among the consuming public. GNC Pawn has acknowledged on its website that, with the growth of its

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business has come an attempt to improve the image the general public has of Pawn Shops, and that there is a need to clean up our industy [sic] image. See http://www.gncpawn.com/historygold.php. 42. There is no association or affiliation of any kind between GNC and GNC Pawn.

GNC has no control over the manner of GNC Pawns use of the GNC Pawn name or logo, or of the nature or quality of the goods or services advertised, promoted, and offered by GNC Pawn under those marks. 43. Upon information and belief, GNC Pawns adoption and use of the GNC Pawn

name and logo represent a willful attempt to dilute GNCs Marks. GNC Pawn adopted the GNC Pawn name and logo with actual notice of GNCs Marks and has continued to use the GNC Pawn name and logo over GNCs express objection. 44. 45. GNC Pawn has been unjustly enriched by its likely dilution of GNCs Marks. GNC Pawns actions have caused, or are likely to cause, great and irreparable

injury to GNC, including irreparable injury to its goodwill and reputation, for which GNC has no adequate remedy at law. 46. Upon information and belief, GNC Pawn will continue to commit the acts

complained of unless enjoined. COUNT I Federal Trademark Dilution 15 U.S.C. 1125(c) (Dilution of GNCs Marks) 47. 48. Paragraphs 1 through 46 are incorporated and made a part of this Count. GNCs Mark are each famous within the meaning of 15 U.S.C. 1125(c), and

became famous long before GNC Pawn began using the GNC Pawn name and logo in connection with the advertising, marketing, importation, distribution and sale of its pawn - 13 -

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services. GNCs Mark are advertised and used extensively throughout the United States, and are highly recognizable by the trade and consuming public. Further, GNC actively polices against the use, infringement and/or dilution of GNCs Marks by third parties. 49. 50. GNC Pawn is engaged in a commercial use of the GNC Pawn name and logo. GNC Pawns actions are disparaging and damaging, and are likely to dilute

GNCs Marks through, at the very least, blurring and tarnishing. 51. The likely dilution of GNCs Marks caused by GNC Pawn violates section 43(c)

of the Lanham Act, 15 U.S.C. 1125(c). COUNT II State Trademark Dilution Fla. Stat. 495.151 (Dilution of GNCs Marks) 52. 53. Paragraphs 1 through 51 are incorporated and made a part of this Count. GNCs Marks are each famous in the state of Florida under Fla. Stat. 495.151,

and each became famous long before GNC Pawn began using the GNC Pawn name and logo in connection with the advertising, marketing, importation, distribution and sale of its pawn services. GNCs Marks are advertised used extensively throughout the state of Florida and are highly recognizable by the trade and consuming public in Florida. 54. GNC Pawns use of the GNC Pawn name and logo dilutes the distinctive quality

of GNCs Marks and is likely to injure GNCs business reputation in the state of Florida. 55. The dilution of GNCs Marks caused by GNC Pawn violates section 495-151 of

the Florida Statues, Fla. Stat. 495-151. JURY TRIAL DEMAND GNC respectfully requests a jury trial for this matter. WHEREFORE, GNC prays for judgment against GNC Pawn as follows: - 14 -

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A.

Permanently enjoining and restraining GNC Pawn, its directors, members,

officers, agents, servants, employees, subsidiaries, and affiliates, and all persons in active concert or participation with, through, or under any of them: 1. from using the GNC Pawn name and/or logo in connection with any commercial

endeavors; 2. from registering or attempting to register the GNC Pawn name and/or logo as a

trademark or service mark with any governmental agency; and 3. from using any other designation that is likely to disparage, tarnish or dilute the

distinctive quality of GNCs Marks; and B. Requiring that GNC Pawn deliver up to GNC any and all containers, signs,

packaging materials, printing plates, and advertising or promotional materials and any materials used in the preparation thereof, which in any way use or make reference to the GNC Pawn name or logo. C. Requiring that GNC Pawn, within thirty (30) days after service of notice of entry

of judgment or issuance of an injunction pursuant thereto, file with the Court and serve upon GNCs counsel a written report under oath setting forth details of the manner in which GNC Pawn has complied with the Courts order pursuant to paragraphs A through B above. D. In connection with GNC Pawns acts of federal and state trademark dilution,

requiring GNC Pawn to account and pay over to GNC all damages sustained by GNC, GNC Pawns profits, GNCs attorneys fees and costs, and ordering that the amount of damages awarded GNC be increased three times the amount thereof. E. proper. That GNC be awarded such other and further relief as this Court deems just and

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Dated: April 26, 2013

Respectfully submitted, s/ Sara F. Holladay-Tobias Sara F. Holladay-Tobias Florida Bar No. 0026225 Rory J. Diamond Florida Bar No. 101666 rdiamond@mcguirewoods.com MCGUIREWOODS LLP 50 N. Laura Street, Suite 3300 Jacksonville, Florida 32202 Tel: (904) 798-3200 Fax: (904) 798-3207 Robert M. Tyler (pro hac vice application to be submitted) rtyler@mcguirewoods.com William N. Federspiel (pro hac vice application to be submitted) wfederspiel@mcguirewoods.com MCGUIREWOODS LLP One James Center 901 East Cary Street Richmond, VA 23219 Tel: (804) 775-1000 Fax: (804) 775-1061 Attorneys for Plaintiffs General Nutrition Investment Company and General Nutrition Centers, Inc.

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