Published: Monday, September 3, 2007
Lawsuit targets N. Lima business
The lawsuit asks that all FREEZE IT goods be destroyed.
YOUNGSTOWN The maker of a green balm for muscle pain is suing a North Lima business in federal court alleging its green FREEZE IT rub is a knock-off product.
Cleveland lawyers who represent Performance Health Inc., which counts among its products the topical analgesic balm BIOFREEZE, claim that Perfecta Products on West South Range Road designed the packaging of FREEZE IT with the intention of trading on the long-standing good will BIOFREEZE built up over the past 17 years. The packaging for both muscle-pain products features all-block lettering, tag lines and explanatory phrases.
Scott Gorley, Perfecta Products president, was away from the office until Tuesday, a company spokesman said. No one else was authorized to comment about the trademark lawsuit.
The civil lawsuit filed this past week by Cleveland attorneys Deborah Wilcox and Christina Moser is pending in Youngstown federal court. The defendants include Interbay Ventures in Florida and five as yet identified affiliated companies involved in distribution and sales.
The case has been assigned to U.S. District Judge Peter C. Economus for jury trial.
While BIOFREEZE is sold through healthcare professionals, FREEZE IT is available online and at well-known retail outlets, the lawsuit says. The BIOFREEZE lawyers contend confused consumers think FREEZE IT, a relatively new product, is also made by Performance Health Incorporated.
What's in suit
"Defendants were well familiar with PHI's BIOFREEZE® mark when they adopted the FREEZE IT mark, decided to color its gel green and designed its packaging for the product," the lawsuit states. "In fact, the very first line of defendants' product packaging invites consumers to 'compare to the active ingredients in BIOFREEZE.'"
The BIOFREEZE lawyers said the target market for FREEZE IT is the consumer already familiar with BIOFREEZE products because they are undergoing physical therapy, chiropractic care, occupational therapy, athletic training, podiatry, spa or massage therapy.
The lawsuit includes a FREEZE IT commercial available on a YouTube Web site in which the presenter sits at a table on which both BIOFREEZE and FREEZE IT tubes are displayed. The presenter knocks the BIOFREEZE gel tube over while stating: "Do you really need to go to a clinic to get the best pain relief rub? I don't think so. FREEZE IT contains the same active and natural ingredients as products you buy from clinics."
The lawsuit contends the maker of BIOFREEZE has suffered irreparable harm to its business, reputation and good will and sustained serious loss of revenue. As remedy, the lawsuit asks the court to find that the defendants have committed deceptive trade practices and issue a permanent injunction against Perfecta Products, prohibiting it from manufacturing and distributing products that use the FREEZE IT mark or any variation of FREEZE.
The BIOFREEZE lawyers want delivered to Performance Health Incorporated for destruction all FREEZE IT goods under control of Perfecta Products. The lawyers also want an order recalling all goods sold and requiring Perfecta Products to issue written notices about the injunction, should it be granted.
Also, Performance Health Incorporated wants Perfecta Products to "disseminate corrective advertising."
The maker of BIOFREEZE asks for monetary damages to be determined by the court and/or triple all Perfecta Products profits.