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Zosma Ventures, Inc. v. Nazari

United States District Court, Ninth Circuit

May 30, 2013

ZOSMA VENTURES, INC., Plaintiff,
v.
MOJDEH AMINI NAZARI, an individual and d.b.a. PARSMED TRADING et al., Defendants Judgment or, in Defendants.

ORDER re: Mojdeh Amini Nazari, Viva Pharmaceutical, Inc. and American Export Lines, Inc.'s Motion for Summary the alternative, Summary Adjudication [89]

RONALD S.W. LEW, District Judge.

Currently before the Court is Defendants Mojdeh Amini Nazari, Viva Pharmaceutical, Inc. and American Export Lines, Inc.'s ("Defendants") Motion for Summary Judgment or, in the alternative, Summary Adjudication [89]. Having reviewed all papers submitted pertaining to this motion, THE COURT NOW FINDS AND RULES AS FOLLOWS:

The Court hereby DENIES Defendants' Motion.

I. BACKGROUND

This Action stems from Plaintiff Zosma Ventures, Inc.'s ("Plaintiff") trademark infringement dispute with Defendants Mojdeh Nazari ("Nazari"), Viva Pharmaceutical, Inc. ("Viva"), and American Export Lines, Inc. ("AEL") (collectively, "Defendants").[1]

Plaintiff is a Delaware corporation that is in the business of selling dietary and nutritional supplements, such as fish oil supplements, through its subsidiary company, Formulated Sciences, Inc. ("Formulated Sciences"), a California Corporation. Plaintiff is the trademark holder of various Formulated Sciences trademarks ("Zosma Trademarks"), including the mark FORMULATED SCIENCES, that are at issue in this Action.

Plaintiff alleges that Defendant Nazari was previously the exclusive licensee of its products in the Middle East between 2003 and 2008. However, Plaintiff alleges that in 2008, Defendant Nazari ceased communications with Plaintiff, reneged on a purchased order, and discontinued her rights to use Plaintiff's trademark.

Plaintiff alleges that in 2010, it learned that counterfeit fish oil products bearing the Zosma Trademarks were being sold in Iran, and suspected that Defendant Nazari was involved. Some of the nutritional supplements allegedly bear the name "FormAlated Sciences." Further, in December 2011, Defendant Givi (who has since been dismissed from this Action) allegedly submitted a trademark application to the USPTO for the mark FORMATIVE SCIENTISTS, which was denied.

Plaintiff claims that Defendants operated a multinational counterfeiting scheme with its nerve center in Los Angeles involving fish oil products. Plaintiff alleges that Defendants Nazari and Givi utilized a manufacturer, Defendant Viva, located in British Columbia, to produce fish oil products that were labeled with Plaintiff's trademarks or marks confusingly similar to Plaintiff's trademarks. Plaintiff alleges that once Viva completed manufacture of the fish oil products, the goods were shipped to Iran through the United States by AEL.

In its Complaint, Plaintiff alleges claims for (1) federal trademark infringement and counterfeiting under the Lanham Act; (2) unfair competition and false designation under the Lanham Act; (3) federal trademark dilution under the Lanham Act; (4) common law trademark and trade name infringement; (5) California trademark dilution; and (6) California state law unfair competition.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986).

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the moving party makes this showing, the non-moving party must set forth facts showing that a genuine issue of disputed material fact remains. Celotex , 477 U.S. at 322. The non-moving party is required by Federal Rule of Civil Procedure 56(e)[2] ...


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