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Federal Judge Rejects Sepracor Inc.s Motion to Dismiss Case and Allows...



Tharos Laboratories, Inc. (Tharos) won a key battle in an ongoing lawsuit against Sepracor, Inc. (Sepracor). Federal Court Judge Dee Benson has sided with Tharos on proceeding with its filed lawsuit (Case No. 2:06CV00757) in federal court in Salt Lake City, Utah against Sepracor of Marlborough, MA, directed to protect Tharos's intellectual property.



Alleged in the Complaint are claims of trademark infringement, false designation of origin and dilution arising under the Lanham (Trademark) Act of 1946, violations of the Deceptive and Unfair Trade Practices Act, and common law unfair competition and trademark infringement. The complaint alleges that Sepracor'ss advertisements and website related to its Lunesta sleep product have copied several aspects of Tharos's promotional materials and intellectual property used in connection with Tharos's NYTEX® sleep aid supplement, including confusingly similar butterfly designs which cause confusion to consumers and irreparable damage to Tharos.



Dr. Nikos M. Linardakis, President and CEO of Tharos said, It'ss about good will and trademarks. We developed the trademarked butterfly first, we had it first, and these are close to identical marks and products. We want Sepracor to stop their butterfly advertising and marketing campaign immediately. Dr. Linardakis added, We are pleased the Court recognized the importance of this case, and are encouraged by this latest step. Since our initial request for Sepracor to cease and desist, they have not responded in the form we would like to see. For almost a year we have been fighting Sepracor'ss delay tactics at dealing with this issue. Our position is to protect our company'ss intellectual property, which include its federally registered trademarks. We are confident that Tharos will prevail on this case.



Tharos has filed an action for trademark infringement under the Lanham Act to protect Tharos's federally registered butterfly design and NYTEX® trademarks for sleep supplement products. It'ss a classic 'sDavid and Goliath's scenario, said Tharos's attorney Rakesh M. Amin, of Amin Hallihan, LLC. In the end, Sepracor will not be allowed to trade in on the butterfly trademark and the promotional campaign that my client worked so hard to develop. We are dealing with two very similar butterfly marks which are both used in connection with sleep aid products. Tharos places great value in all of its intellectual property, and we will fight to that end to protect it, said Amin.



In an effort to prevent evidence from reaching a jury, Sepracor sought to dismiss the case. Sepracor argued that the marks are completely different. However, during the hearing on Friday, February 9, 2007, Federal Court Judge Benson rejected Sepracor'ss argument, stating that These are both butterflies or something like a butterfly,'s8230;We'sll take a look at it under a summary judgment standard and we will be exploring facts, which is what we do.



Tharos will protect its intellectual property to the fullest extent. In its complaint, Tharos Laboratories has claimed ownership of its federally registered NYTEX® and butterfly design trademarks. Tharos is seeking damages from Sepracor for utilizing a confusingly similar butterfly design in a marketing and advertising campaign for a similar product. Tharos has alleged and believes that Sepracor is attempting to trade off the good will Tharos has established in connection with its registered trademarks by utilizing a confusingly similar design in connection with a similar product in a similar marketplace to similar consumers. Tharos is also requesting a permanent injunctive relief under Section 34(a) of the Lanham Act. This includes the broad provision restraining Sepracor from unfairly competing with Tharos in any manner whatsoever.



Tharos is an international pharmaceutical ingredient and nutraceutical company focused on isolating, extracting, purifying and concentrating commercially standardized dosages of naturally occurring phytochemical compounds. Using a patented extraction process, high-grade phytochemicals are isolated from fruits and plants such as raspberries, blueberries, and other fruits grown by quality producers. The company'ss current product line includes NYTEX® sleep supplement which contains the patent-protected antioxidant PROCIDIN®. Tharos Laboratories's company motto is Strength from Nature. Endorsed by Science.®



For company or product information contact Tharos Laboratories at 774.219.6619 or visit www.TharosLabs.com, www.BuyNYTEX.com, www.NYTEX.info and www.HeartDefense.info.



Tharos Laboratories, Inc.

6465 South 3000 East, Unit 105

Salt Lake City, UT 84121

801-944-2484



For more information contact:   


Rakish M. Amin

Amin Hallihan LLC

312.466.1033



NYTEX® and PROCIDIN® are registered trademarks of Tharos Laboratories, Inc. All other names and trademarks are the property of their respective owners.






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