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COVID-19 test kits are impermissibly appearing online, trademark suit says

Patrick H.J. Hughes  

Patrick H.J. Hughes  

(April 10, 2020) - CoronaCide LLC, which distributes COVID-19 testing kits to licensed health care facilities, has filed a trademark infringement suit against a California company that the suit says has been impermissibly offering the tests for sale online.

CoronaCide filed the suit against Wellness Matrix Group Inc. on April 8 in the U.S. District Court for the Middle District of Florida, claiming copies of its trademarks and images of the testing kits have appeared on the defendant’s websites.
 
Wellness Matrix has been using these images to “deceptively, falsely and without any authorization from CoronaCide, advertise and market CoronaCide test kits (or counterfeits thereof),” according to the complaint.
 
The suit says the websites also display copies of CoronaCide’s marketing materials, including a product insert that has a CoronaCide logo replaced by the words “At-Home.”
 
According to the complaint, someone from Wellness Matrix tweeted in March about the rollout of “home testing kits,” and included an altered photo of a CoronaCide test kit.
 
CoronaCide says it does not distribute its test kits for home use and limits its sales to medical distribution companies, hospitals, and city and state governments to assure proper use as the U.S. Food and Drug Administration requires. The FDA stated in March that it has not authorized laypersons to administer tests for COVID-19.
 

’Expressly rejected’

Attorneys Richard E. Fee and Kathleen M. Wade of Fee & Jeffries filed the suit on behalf of CoronaCide.
 
They say CoronaCide is the sole distributor of its in-vitro diagnostic “COVID-19 Igm/IgG rapid tests.”
 
”In simple terms, CoronaCide test kits use a blood sample to detect the presence of antibodies relating to the COVID-19 virus,” the complaint says.
 
The suit says Wellness Matrix representative George Todt, who is also a defendant in the suit, approached CoronaCide in February expressing an interest in purchasing test kits and later sent a purchase order.
 
CoronaCide says it learned that Todt had been repeatedly sued for fraud, so it “expressly rejected and never accepted the defendant’s purchase order.”
 
Despite the rejection, Wellness Matrix websites at cs-28.com and stopcorona28.com, which CoronaCide discovered Todt had registered, have displayed images of CoronaCide’s test kits and graphics that CoronaCide provides for directions on how to use the kits, the suit says.
 
Wellness Matrix also displayed infringing images at its site at wellnessmatrixgroup.com, but that site has since been deactivated, the suit says.
 
The sites that remain display images and information from CoronaCide’s own site, at coronacide.com, including test accuracy information and study results that apply only to CoronaCide’s tests, the suit says.
 
CoronaCide’s official website warns of “unscrupulous individuals and entities” linking to its site, and mentions Wellness Matrix and others.
 
Given these actions, the public is likely to believe there is an affiliation between the companies that does not exist, the suit says.
 

’Combat the COVID-19 pandemic’

The suit says Wellness Matrix’s use of the trademarks violates Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C.A. § 1125(a)(1)(A).
 
Use of the marks and photos of CoronaCide products on the websites also violates Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. § 501.201, it says.
 
CoronaCide seeks damages, costs, expert fees and attorney fees, as well as an injunction barring the defendants from using the marks and marketing the test kits.
 
Unless stopped, Wellness Matrix “will continue to damage CoronaCide’s efforts to provide efficacious test kits to combat the COVID-19 pandemic and help restart the economy,” the suit says.

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