Complaint Us Afip

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA, United States Attorney’s Office 36 South Charles Street Fourth Floor Baltimore, Maryland 21201 Plaintiff, v. AFIP LABORATORIES, INC., d/b/a AIPL, 8403 Colesville Road, Suite 1600 Silver Spring, Maryland 20910 Montgomery County DAVID G. BOSTWICK, 4724 Lake Calabay Drive Orlando, Florida 32837 and EVAN R. FARMER, 580 Mowbray Arch Norfolk, Virginia 23507 Defendants.

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Civil Action No. 09-2908

COMPLAINT FOR TRADEMARK INFRINGEMENT, UNFAIR COMPETITION, AND FALSE AND MISLEADING REPRESENTATIONS OF FACT Plaintiff United States of America (“United States”), for its Complaint against AFIP Laboratories, Inc. (“AFIP Laboratories”), David G. Bostwick, and Evan R. Farmer avers as follows:

NATURE OF THIS ACTION 1.

This is an action for injunctive relief, damages, costs, and attorney’s fees for

violations by Defendants to intellectual property rights owned by the United States. These violations consist of trademark infringement, unfair competition, and false or misleading descriptions and representations of fact in commercial advertising. 2.

The Defendants have engaged in trademark infringement of the registered

trademark “Ask AFIP,” in violation of the Trademark Act, 15 U.S.C. §§ 1051-1127, through the uses of the confusingly similar tradenames “AFIP Laboratories” and “AIPL,” and the uses of the domain name “afiplaboratories.com” and telephone number 1-877-AFIPLAB through which Defendants market and provide consultative pathology services. 3.

The Defendants have engaged in unfair competition and false or misleading

representations and descriptions of fact in violation of the Trademark Act, 15 U.S.C. § 1125(a), by falsely creating the impression that their AFIP Laboratories is associated with, or endorsed by, the United States and in particular the “Armed Forces Institute of Pathology,” an agency of the United States. Defendants’ uses of the tradenames “AFIP Laboratories” and “AIPL” which are substantially similar to “Armed Forces Institute of Pathology” and “AFIP,” the name and acronym continuously used by the United States since 1949 in connection with its pathology and radiology laboratory. Defendants’ advertisement and press releases promoting their pathology services repeatedly references “AFIP” and the “Armed Forces Institute of Pathology,” and states characteristics relevant to the Institute, and not to Defendants’ services.

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4.

For the foregoing reasons, the United States seeks, inter alia, damages, costs and

attorneys fees, impounding and disposition of infringing materials and means of infringement, and to preliminarily and permanently enjoin the Defendants jointly and severally from developing, promoting, distributing, providing, and selling pathology services in violation of Plaintiff’s rights under federal law. THE PARTIES 5.

The Armed Forces Institute of Pathology (“the Institute”) is an agency of the

United States Department of Defense with its headquarters in the District of Columbia. The Institute is responsible for providing consultation, education, and research in the areas of pathology and radiology. 6.

Defendant AFIP Laboratories is a Maryland corporation engaged in providing

diagnostic consultative anatomic pathology services. AFIP Laboratories’ principal place of business is located in Silver Spring, Maryland. 7.

Upon information and belief, Defendant David G. Bostwick resides at 4724 Lake

Calabay Drive, Orlando, Florida. David G. Bostwick has been identified as the initial founder, the initial director, and a principal of AFIP Laboratories. 8.

Upon information and belief, Defendant David G. Bostwick is responsible for

governing the affairs and activities of AFIP Laboratories and is legally responsible for the conduct of AFIP Laboratories. 9.

Upon information and belief, Defendant Evan R. Farmer is a resident of the State

of Virginia. Defendant Evan R. Farmer has been identified as the Director of AFIP Laboratories. 3

10.

Upon information and belief, defendant Evan R. Farmer is responsible for

governing the affairs and activities of AFIP Laboratories and is legally responsible for the conduct of AFIP Laboratories. JURISDICTION AND VENUE 11.

This Court has federal question and/or original subject matter jurisdiction over

this action pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338 and 1345. 12.

Personal jurisdiction exists over Defendant AFIP Laboratories because it resides

in Maryland; conducts business, sells, and advertises its products in Maryland; and has caused injury to Plaintiff in Maryland. Md. Cts. & Jud. Proc. Code Ann. § 6-103(b)(1). 13.

Personal jurisdiction exists over Defendant David G. Bostwick because he is the

initial founder, the initial director, and a principal of Defendant AFIP Laboratories which resides in Maryland; conducts business, sells, and advertises its products in Maryland; and has caused injury to Plaintiff in Maryland. Md. Cts. & Jud. Proc. Code Ann. § 6-103(b)(1). 14.

Personal jurisdiction exists over Defendant Evan R. Farmer because he is the

director and a principal of Defendant AFIP Laboratories which resides in Maryland; conducts business, sells, and advertises its products in Maryland; and has caused injury to Plaintiff in Maryland. Md. Cts. & Jud. Proc. Code Ann. § 6-103(b)(1). 15.

Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b)-(c) and

1400(a).

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STATEMENT OF FACTS 16.

On February 6, 2007, the Department of Defense’s (the DOD) trademark “Ask

AFIP” (“DOD’s Registered Trademark”) was duly registered on the Principal Register of the United States Patent and Trademark Office under Registration No. 3,206,308. The DOD’s Registered Trademark is valid and in full force and effect. A true and correct copy of the DOD’s Registered Trademark has been attached to this Complaint as Exhibit 1. 17.

For more than 55 years, the Institute has continuously and widely used its name

“Armed Forces Institute of Pathology” and its acronym “AFIP” (collectively, “Institute’s Marks”) to identify the Institute as the source of pathology diagnostic consultations, education, and research. The Institute has used the Institute’s Marks in providing hundreds of thousands of surgical and autopsy consultation for pathologists in the military, the Department of Veterans Affairs, and the civilian population. Since 1976, the medical and scientific staff at the Institute, using the Institute’s Marks, have published over 11,000 journal articles in a multitude of medical publications. Further, over the past 60 years, the Institute’s staff has given approximately 2,000 lectures and presentations at professional meetings and conferences throughout the world. The Institute was original founded in 1862 as the “Army Medical Museum” and has been carrying out the same mission for the last 147 years. 18.

Each year, the Institute, using the Institute’s Marks, publishes an in-depth annual

report which catalogues the accomplishments of each of the Institute’s departments. The report is distributed to over 2,000 members of the medical and scientific community worldwide. The Institute also publishes a quarterly newsletter, entitled “the AFIP Letter,” with circulation of 5

15,000, to provide timely information on policies, activities, and programs relevant to the military and civilian pathology community. 19.

On September 15, 2005, President George W. Bush sent to Congress a report

containing the recommendations from the Defense Base Closure and Realignment Commission (“BRAC”), including the recommendation to disestablish the Institute by September 15, 2011. 20.

In 2008, prior to the disestablishment of the Institute, Congress passed the

National Defense Authorization Act establishing a Joint Pathology Center to assume many of the Institute’s responsibilities in consultation, education, and research, as well as the modernization of the Institute’s tissue repository. Congress further mandated that the Institute remain operational under the name Armed Forces Institute of Pathology at least until the DOD creates a Joint Pathology Center. National Defense Authorization Act of 2008, Public L. No. 110-181, Sec. 722. 21.

The Institute, under the name “Armed Forces Institute of Pathology” and the

acronym “AFIP,” is currently operational and fulfilling its Congressionally mandated duties. The Institute plans to remain operational throughout and after the transition into the Joint Pathology Center. 22.

On or around July 29, 2009, the DOD received information that Defendant David

G. Bostwick, as founder, initial director, and principal, had created Defendant AFIP Laboratories and was engaged in the business of advertising and providing diagnostic anatomic pathology services under the name “AFIP Laboratories.”

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23.

On or around August 7, 2009, the DOD received information that Defendant Evan

R. Farmer had been named director of “AFIP Laboratories.” 24.

On August 3, 2009, the DOD sent the first of two cease and desist letters. The

first letter was sent to Defendant David G. Bostwick. The second letter, sent on August 4, 2009, was mailed to Defendant AFIP Laboratories. 25.

On August 13, 2009, in response to the two cease and desist letters, counsel for

Defendant AFIP Laboratories e-mailed that by 5 p.m. of that day AFIP Laboratories “will cease all use in commerce of the AFIP mark, including the AFIP LABORATORIES mark, and will disable its website located at the afiplaboratories.com URL.” 26.

Upon information and belief, at approximately 9 a.m. on the morning of August

14, 2009, Defendants domain name www.afiplaboratories.com was still operational and displaying the name “AFIP Laboratories” and the phone number 1.877.AFIPLAB on the website home page. Further, the phone number was answered automatically with a machine stating that the caller had reached “AFIP Laboratories.” 27.

Upon information and belief, at approximately 10 a.m. on the morning of

August 14, 2009, Defendants domain name www.afiplaboratories.com was operational, but redirected users to www.aiplaboratories.com, which displayed the name “AIPL” at the top of the home page as well the phone number 1.877.234.7522. Appearing near the top of Defendants’ website home page, read the words “American International Pathology Laboratories.” Further, the phone number was answered automatically with a machine stating that the caller had reached “AIP Laboratories.” 7

Defendants’ Actions Prior to 10 a.m. on August 14, 2009 28.

On or around July 29, 2009, the DOD learned that Defendants’ had created a one-

page advertisement (“Advertisement” or “Defendants’ Advertisement”) to promote their pathology services. Defendants placed the Advertisement in at least one medical journal. The Advertisement used the name “AFIP Laboratories” and referenced the “Armed Forces Institute of Pathology” furthering Defendants’ efforts to confuse consumers as to the source of their services. 29.

Defendants’ Advertisement provided readers with contact information for AFIP

Laboratories through a provided website domain name and phone number. The domain name of Defendants’ website provided in the Defendants’ Advertisement was www.afiplaboratories.com and the provided phone number was 1.877.AFIPLAB. 30.

Defendants’ Advertisement included at the top of the page the name, “AFIP

Laboratories,” and just below the name, the statement “Heritage of Excellence.” Near the bottom of the Advertisement, a bullet point read, “150 Years of Experience,” and in the text below the bullet point appeared the statement, “AFIP Laboratories is a premium provider of diagnostic consultative anatomic pathology services, made up of many former civilian pathologists and staff of the Armed Forces Institute of Pathology. Building on that organization’s 150-year history, AFIP Laboratories will continue the Institute’s tradition of excellence and expertise . . . .” 31.

As of 10 a.m. on August 14, 2009, Defendants’ website home page was accessed

through the domain name www.afiplaboratories.com. The home page provided readers with contact information for “AFIP Laboratories” through the phone number 1.877.AFIPLAB.

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32.

As of 10 a.m. on August 14, 2009, Defendants’ website home page included at the

top of the page the name, “AFIP Laboratories,” and just below the name, the statement “Heritage of Excellence.” A statement near the middle of the page read in part: “AFIP Laboratories proudly announces its formation and the appointment of Dr. Evan Farmer, M.D. as Director. AFIP Laboratories will be led by former civilian pathologists, radiologists and professional staff of the Armed Forces Institute of Pathology, who will continue to provide premium anatomic pathology services for the government, physicians and patients, with emphasis on all anatomic pathology specimens and related services.” Defendants’ Actions After 10 a.m. on August 14, 2009 33.

On August 14, 2009 at approximately 10 a.m., Defendants changed the name of

their laboratory from “AFIP Laboratories” to “AIPL,” which Defendants state stands for “American International Pathology Laboratories.” 34.

As of August 18, 2009, Defendants’ website home page included a link to a press

release (“Press Release”) with the headline “AFIP Laboratories Fills Critical Void Left by Scheduled Closure of Walter Reed Army Medical Center.” The Press Release repeatedly uses the name “AFIP Laboratories,” further describes the Institute as “soon-to-be-closed,” and states, “AFIP Laboratories will continue the Institute’s mission of providing pathology services to government, physicians and patients . . . .” A line of text at the top of the Press Release provided that the Press Release occurred prior to the name change from “AFIP Laboratories” to “AIPL. 35.

As of August 21, 2009, Defendants’ website home page continued to be

accessible through both the domain name www.aiplaboratories.com and the domain name 9

www.afiplaboratories.com, which redirects users to www.aiplaboratories.com. Defendants’ website home page provided readers with contact information for “AIPL” through the phone number 1.877.234.7522. 36.

On September 8, 2009, Defendants issued a second press release (“Second Press

Release”) titled “AIPL Opens Doors to World-Class Facility.” The Second Press Release stated that “[t]he 150-year-old Institute will cease operations when Walter Reed closes under the Federal Base Realignment and Closure Program” and that under Defendant Farmer’s direction, “AIPL will continue the Institute’s mission of providing premium anatomic pathology services to governments, scientists, physicians and patients . . . .” 37.

As of October 4, 2009, Defendants’ website home page included the following

statement: “In 2005, as part of the Base Realignment and Closure (BRAC) Program, the Department of Defense decided to close the Armed Forces Institute of Pathology (AFIP). As the deadline for closure is drawing near a group of AFIP pathologists have formed a new organization - American Pathology Laboratories (AIPL) - aimed at continuing the AFIP tradition of the highest quality consultation, education and research in anatomic pathology.” 38.

Defendants’ website home page continues to include the name, “AIPL,” near the

top of the page. Immediately below the name appears the statement, “Heritage of Excellence,” and just below that statement, reads the phrase, “American International Pathology Laboratories.” 39.

Defendants’ activities are likely to confuse consumers or deceive them into

believing that Defendants’ pathology services are products of the Plaintiff or that Defendant 10

and/or its services are endorsed or associated with the Plaintiff. Based upon information and belief, an unlawful purpose of Defendants’ activities is to obtain the benefit of the valuable goodwill and reputation associated with the Institute’s Marks. FIRST CLAIM FOR RELIEF (Trademark Infringement) 40.

Defendants’ uses of the names “AFIP Laboratories” and “AIPL” as trademarks,

Defendants’ uses of the phone number 1.877.AFIPLAB, and Defendants’ uses of www.afiplaboratories.com as a domain name on the internet and in advertising are likely to and have caused actual confusion, mistake, and deception as to the source, sponsorship, or affiliation of Defendants’ services in violation of the Trademark Act, 15 U.S.C. § 1114. 41.

Defendants’ statements contained in the Press Release and the Second Press

Release are likely to and have caused actual confusion, mistake, and deception as to the source, sponsorship, or affiliation of Defendants’ services in violation of the Trademark Act, 15 U.S.C. § 1114. 42.

AFIP Laboratories is not affiliated with the Institute, an agency of the DOD (and

thereby the United States), which owns the DOD’s Registered Trademark. 43.

Both Defendants and the Institute provide pathology consultation services under

their respective tradenames. 44.

The name “AFIP Laboratories,” the name “AIPL,” the website domain name

“www.afiplaboratories.com,” and phone number 1.877.AFIPLAB closely resemble the DOD’s Registered Trademark.

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45.

Defendants’ activities have caused the DOD to sustain damage to its business, and

to the value of the DOD’s Registered Trademark and the goodwill associated with the DOD’s Registered Trademark. SECOND CLAIM FOR RELIEF (False Designation of Origin) 46.

Defendants’ uses of the names “AFIP Laboratories” and “AIPL,” the website

domain name www.afiplaboratories.com, and the phone number 1.877.AFIPLAB constitute false designations of origin in violation of the Trademark Act, 15 U.S.C. § 1125(a). 47.

For over 50 years, the Institute has continuously used in commerce the name

“Armed Forces Institute of Pathology” and the acronym “AFIP” in connection with the Institute’s services. 48.

The name “Armed Forces Institute of Pathology” and the acronym “AFIP” act to

designate the source of origin for the Institute’s services. 49.

The Department of Defense owns common law trademark rights in the name

“Armed Forces Institute of Pathology” and the acronym “AFIP” for use in connection with its services. 50.

The name “AFIP Laboratories” used in connection with providing pathology

services is confusingly similar to the Institute’s trademarks - “Armed Forces Institute of Pathology” and “AFIP” - and is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services.

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51.

The name “AIPL” used in connection with providing pathology services is

confusingly similar to the Institute’s trademarks - “Armed Forces Institute of Pathology” and “AFIP” - and is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. 52.

The website domain name, www.afiplaboratories.com, used to promote Defendant

AFIP Laboratories pathology services, is confusingly similar to the Institute’s Marks and is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. 53.

The phone number, 1.877.AFIPLAB, used as a means to contact Defendant AFIP

Laboratories to avail oneself of its pathology services, is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. 54.

In promoting their pathology services, Defendants’ Advertisement, Press Release,

Second Press Release, and statements appearing on their website individually and collectively constitute false designation of origin in violation of the Trademark Act, 15 U.S.C. § 1125(a). 55.

Defendants’ Advertisement includes the name “AFIP Laboratories,” the website

domain name www.afiplaboratories.com, and the phone number 1.877.AFIPLAB which individually and collectively are confusingly similar to the Institute’s Marks and are likely to cause, and already have caused, confusion, mistake, or deception as to the origin of Defendants’ services. 56.

Defendants’ Advertisement includes in the header the statement “Heritage of

Excellence,” near the bottom of the page a bullet point reading “150 Years of Experience,” and 13

in the text below the bullet point the statement, “[b]uilding on that organization’s [the Institute’s] 150-year history, AFIP Laboratories will continue the Institute’s tradition of excellence and expertise, . . . .” 57.

The name “AFIP Laboratories” repeatedly appears in Defendants’ Press Release

and is confusingly similar to the Institute’s Marks and is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. 58.

Defendants’ Press Release is titled, “AFIP Laboratories Fills Critical Void Left by

Scheduled Closure of Walter Reed Army Medical Center,” describes the Institute as “soon-to-beclosed,” and states, “AFIP Laboratories will continue the Institute’s mission of providing pathology services to government, physicians and patients . . . .” 59.

Defendants’ Second Press Release stated that “[t]he 150-year-old Institute will

cease operations when Walter Reed closes under the Federal Base Realignment and Closure Program” and that under Defendant Farmer’s direction, “AIPL will continue the Institute’s mission of providing premium anatomic pathology services to governments, scientists, physicians and patients . . . .” 60.

Defendants’ website stated that “the Department of Defense decided to close the

Armed Forces Institute of Pathology (AFIP),” and that AIPL is “aimed at continuing the AFIP tradition of the highest quality consultation, education and research in anatomic pathology.” 61.

Through the statements set forth in paragraphs 55 to 60, Defendants create a false

suggestion of association with the Institute that is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. 14

THIRD CLAIM FOR RELIEF (Unfair Competition) 62.

Defendants’ uses of the names “AFIP Laboratories” and “AIPL,” the website

domain name www.afiplaboratories.com, and the phone number 1.877.AFIPLAB constitute unfair competition in violation of the Trademark Act, 15 U.S.C. § 1125(a). 63.

The name “AFIP Laboratories” used in connection with providing pathology

services is confusingly similar to the Institute’s Marks and is likely to cause, and already has caused, confusion, mistake, or deception as to affiliation, connection, or association of Defendant AFIP Laboratories with the Institute. 64.

The website domain name, www.afiplaboratories.com, used to promote Defendant

AFIP Laboratories pathology services, is confusingly similar to the Institute’s Marks and is likely to cause, and already has caused, confusion, mistake, or deception as to affiliation, connection, or association of Defendant AFIP Laboratories with the Institute. 65.

The phone number, 1.877.AFIPLAB, used as a means to contact Defendant AFIP

Laboratories to avail oneself of their pathology services, is likely to cause, and already has caused, confusion, mistake, or deception as to affiliation, connection, or association of Defendant AFIP Laboratories with the Institute. 66.

In promoting their pathology services, Defendants’ Advertisement, Press Release,

Second Press Release, and statements appearing on their website individually and collectively constitute false designation of origin in violation of the Trademark Act, 15 U.S.C. § 1125(a).

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67.

Defendants’ Advertisement includes the name “AFIP Laboratories,” the website

domain name www.afiplaboratories.com, and the phone number 1.877.AFIPLAB which individually and collectively are confusingly similar to the Institute’s Marks and are likely to cause, and already have caused, confusion, mistake, or deception as to the origin of Defendants’ services. 68.

Defendants’ Advertisement includes in the header the statement “Heritage of

Excellence,” near the bottom of the page a bullet point reading “150 Years of Experience,” and in the text below the bullet point the statement, “[b]uilding on that organization’s [the Institute’s] 150-year history, AFIP Laboratories will continue the Institute’s tradition of excellence and expertise, . . . .” 69.

The name “AFIP Laboratories” repeatedly appears in Defendants’ Press Release

and is confusingly similar to the Institute’s Marks and is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. 70.

Defendants’ Press Release is titled, “AFIP Laboratories Fills Critical Void Left by

Scheduled Closure of Walter Reed Army Medical Center,” describes the Institute as “soon-to-beclosed,” and states, “AFIP Laboratories will continue the Institute’s mission of providing pathology services to government, physicians and patients . . . .” 71.

Defendants’ Second Press Release stated that “[t]he 150-year-old Institute will

cease operations when Walter Reed closes under the Federal Base Realignment and Closure Program” and that under Defendant Farmer’s direction, “AIPL will continue the Institute’s mission of providing premium anatomic pathology services to governments, scientists, 16

physicians and patients . . . .” 72.

Defendants’ website stated that “the Department of Defense decided to close the

Armed Forces Institute of Pathology (AFIP),” and that AIPL is “aimed at continuing the AFIP tradition of the highest quality consultation, education and research in anatomic pathology.” 73.

Through the statements set forth in paragraphs 67 to 72, Defendants create a false

suggestion of association with the Institute that is likely to cause, and already has caused, confusion, mistake, or deception as to the origin of Defendants’ services. FOURTH CLAIM FOR RELIEF (False or Misleading Descriptions and Representations of Fact) 74.

Defendants’ Advertisement promoting Defendant AFIP Laboratories and their

pathology services contained false or misleading descriptions of fact and false or misleading representations of fact in violation of the Trademark Act, 15 U.S.C. § 1125(a). 75.

Defendants’ Advertisement includes in the header the statement “Heritage of

Excellence,” near the bottom of the page a bullet point reading “150 Years of Experience,” and in the text below the bullet point the statement, “[b]uilding on that organization’s [the Institute’s] 150-year history, AFIP Laboratories will continue the Institute’s tradition of excellence and expertise . . . .” 76.

Through the statements set forth in paragraph 75, Defendants misrepresent their

affiliation with the Institute by falsely implying that the Defendant AFIP Laboratories is affiliated with or the successor to the Institute, when in fact no such association exists.

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77.

Defendants’ Press Release, Second Press Release, and statements on their website

promoting Defendant AFIP Laboratories and their pathology services contained false or misleading descriptions of fact and false or misleading representations of fact in violation of the Trademark Act, 15 U.S.C. § 1125(a). 78.

Defendants’ Press Release is titled, “AFIP Laboratories Fills Critical Void Left by

Scheduled Closure of Walter Reed Army Medical Center,” describes the Institute as “soon-to-beclosed,” and states, “AFIP Laboratories will continue the Institute’s mission of providing pathology services to government, physicians and patients . . . .” 79.

Defendants’ Second Press Release stated that “[t]he 150-year-old Institute will

cease operations when Walter Reed closes under the Federal Base Realignment and Closure Program” and that under Defendant Farmer’s direction, “AIPL will continue the Institute’s mission of providing premium anatomic pathology services to governments, scientists, physicians and patients . . . .” 80.

Defendants’ website stated that “the Department of Defense decided to close the

Armed Forces Institute of Pathology (AFIP),” and that AIPL is “aimed at continuing the AFIP tradition of the highest quality consultation, education and research in anatomic pathology.” 81.

Through the statements set forth in paragraphs 78 to 80, Defendants misrepresent

their affiliation with the Institute by falsely implying that the Institute will be imminently closing and that Defendant AFIP Laboratories is the successor to the Institute, when in fact the Institute remains operational and no such association exists.

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82.

Defendants’ uses of the confusingly similar names “AFIP Laboratories” and

“AIPL,” the website domain name www.afiplaboratories.com, and the phone number 1.877.AFIPLAB individually and collectively mislead the relevant consumers as to the affiliation, connection, or association of Defendant AFIP Laboratories with the Institute in violation of the Trademark Act, 15 U.S.C. § 1125(a). 83.

Defendants’ conduct and acts have caused or are likely to cause damage to the

Plaintiff in that such acts have deceived the relevant consumers about the nature, quality, and source of Defendants’ goods and products and have caused harm to the Plaintiff’s reputation and to the reputation and perceived quality of Plaintiff’s products. Such damage has caused irreparable injury to Plaintiff and unless preliminary and permanently enjoined, will continue to cause irreparable injury and damage to the Plaintiff for which there is no adequate remedy at law. FIFTH CLAIM FOR RELIEF (Wrongful Registration of Domain Name) 84.

Defendants’ registration of the domain name, www.afiplaboratories.com, was in

bad faith with the intent to profit from the good will associated with the Institute’s name and acronym in violation of the Trademark Act, 15 U.S.C. § 1125(d). 85.

Upon information and belief, since February of 1998, the Institute has used the

domain name, www.afip.org, to provide information regarding its services.

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86.

For over 55 years, the Institute has continuously used in commerce the name

“Armed Forces Institute of Pathology” and the acronym “AFIP” in connection with the Institute’s services. 87.

The domain name, www.afiplaboratories.com, is confusingly similar to the

Institute’s domain name, www.afip.org, as well as the Institute’s name and acronym. 88.

Defendants had bad faith intent to profit by including their domain name on

Defendants’ Advertisement which attempts to create a false suggestion of association between Defendants and the Institute. 89.

Defendants had bad faith intent to profit by creating a website at the domain

name, www.afiplaboratories.com, which included a confusingly similar tradename and phone number, as well as a links to a misleading and false press release. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for: 1.

A preliminary and permanent injunction: (a)

Restraining AFIP Laboratories, Inc., its officers, agents, directors,

employees, servants, partners, shareholders, and all persons in active concert or participation with them, including David G. Bostwick and Evan R. Farmer, from using the tradename “AFIP Laboratories,” the domain name “afiplaboratories.com,” the phone number 1.877.AFIPLAB, the acronym “AFIP”, the name “Armed Forces Institute of Pathology” or any other indicia of the Armed Forces Institute of Pathology or any other indicia of Government affiliation in any manner likely to cause confusion, or to cause 20

mistake, or to deceive, or from otherwise representing to the public in any way that the Defendants or any product produced or service provided by them is in any way sponsored, endorsed, approved, authorized by, or affiliated or connected with, the United States of America, the United States Department of Defense, the Armed Forces Institute of Pathology, the United States Government or any product or service thereof. (b)

directing AFIP Laboratories and its officers, agents, employees, servants,

partners, shareholders, and all persons in active concert or participation with them: (1)

to collect and surrender up to counsel for the Plaintiff all works,

products, packaging, and advertising and any derivative works of the same containing the trademark “Armed Forces Institute of Pathology,” “AFIP,” or any other indicia of any Armed Forces Institute of Pathology trademark, tradename or any other indicia of Government affiliation; (2)

to transfer the registration for the domain name

www.afiplaboratories.com to the Plaintiff, as represented by the Secretary of the Army; (3)

to place the following disclaimer, in 12-point font, or font

commensurate with the largest font used on the website or materials, on all uses of the marks “AIPL” or “AIP Laboratories”: AIP Laboratories is a private corporation and is not sponsored, endorsed, or affiliated in any way with the Armed Forces Institute of Pathology;

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(4)

from using in any way any mark, indicia, designation or name

similar to the Armed Forces Institute of Pathology or AFIP as to be in any manner likely to cause confusion, or to cause mistake, or to deceive; (5)

from representing to the public in any way that the Defendants or

any product produced by them is in any way sponsored, endorsed, approved, authorized by, affiliated or connected in any way with, the United States of America, the United States Department of Defense, the Armed Forces Institute of Pathology, or any government entity or any product or service thereof; and (6)

from making false or misleading statements to the public regarding

the Armed Forces Institute of Pathology. 2.

An award against AFIP Laboratories, David G. Bostwick, and Evan R. Farmer of

all forms of monetary relief authorized by Section 1117 of the Trademark Act, including but not limited to (1) a sum to be spent on corrective advertising and other expenses required to overcome the confusion which has been created by the Defendants’ infringement and other unlawful acts; (2) a sum measured by Plaintiff’s actual damages or by the amount of profits earned by the Defendants, whichever is greater; or where an intentional infringement is found by the Court, three times the amount of the Defendants’ profits attributable to the Defendants’ infringement or three times the Plaintiff’s actual damages, whichever is greater; and (3) the costs of this action along with reasonable attorney fees and interest, as applicable, and for each, in an amount to be determined at trial.

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3.

An award of compensatory damages against Defendants and each of them.

4.

An accounting and disgorgement of each and all of the Defendants' profits

derived as a result of its wrongful acts or such other amount as the court shall find to be just according to the circumstances of the case.

5.

Any other and/or further relief as this Court may deem just, fair and equitable. Respectfully submitted, ROD J. ROSENSTEDSf

United States Attorney By:

Michael P. Grady Assistant United States Attorney Bar No. 28845

United States Attorney's Office 36 South Charles Street Fourth Floor

Baltimore, Maryland 21201-2692 Telephone: (410) 209-4800 Facsimile: (410) 962-9947 michael.grady@usdoj .gov Of Counsel:

TONY WEST

Assistant Attorney General STEVEN O. FORTNEY

Trial Attorney Commercial Litigation Branch Civil Division

Department of Justice Washington, DC 20530 Telephone: (202) 307-0343 Facsimile: (202) 307-0343 Steven.O.Fortney@usdoj .gov Attorneys for Plaintiff United States 23