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Radiancy Inc.’s Answer and Affirmative Defenses to Tria Beauty, Inc.’s Amended Complaint; Radiancy, Inc.’s First Amended Counterclaims - Case No. CV10-5030-RS
Brendan J. O’Rourke* [email protected] Kristin H. Neuman* [email protected] Victoria L. Loughery* [email protected] PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Phone: (212) 969-3000 Facsimile: (212) 969-2900 * Admitted Pro Hac Vice
Robert H. Horn (SBN #134710) [email protected] PROSKAUER ROSE LLP 2049 Century Park East, 32nd Floor Los Angeles, CA 90067-3206 Phone: (310) 557-2900 Facsimile: (310) 557-2193
Attorneys for Defendant-Counterclaim Plaintiff Radiancy, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
TRIA BEAUTY, INC.,
Plaintiff,
vs.
RADIANCY, INC.,
Defendant.
RADIANCY, INC., Counterclaim Plaintiff,
vs.
TRIA BEAUTY, INC. Counterclaim Defendant, and KIMBERLY KARDASHIAN, Counterclaim Defendant.
Case No. CV-10-5030 RS RADIANCY, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO TRIA BEAUTY, INC.’S AMENDED COMPLAINT; RADIANCY, INC.’S FIRST AMENDED COUNTERCLAIMS AGAINST TRIA BEAUTY, INC. AND KIMBERLY KARDASHIAN JURY TRIAL DEMANDED Honorable Richard Seeborg Action Filed: November 5, 2010
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Radiancy Inc.’s Answer and Affirmative Defenses to Tria Beauty, Inc.’s Amended Complaint; Radiancy, Inc.’s First Amended Counterclaims - Case No. CV10-5030-RS
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Defendant-counterclaim plaintiff Radiancy, Inc. (“Radiancy”), by and
through its attorneys, Proskauer Rose LLP, hereby answers the First Amended
Complaint of TRIA Beauty, Inc. (“TRIA” or “plaintiff”):
1. Radiancy admits that TRIA has filed an Amended Complaint (the
“Amended Complaint”) which purportedly asserts claims against Radiancy, arising
from allegedly false or misleading advertising for Radiancy’s hair removal product
(“no!no! Hair”) and acne product (“no!no! Acne”), but otherwise denies the
allegations in paragraph 1 of the Amended Complaint.
PARTIES
2. Radiancy is without knowledge or information sufficient to form a
belief as to the truth of the allegations in paragraph 2 of the Amended Complaint
and therefore denies them.
3. Radiancy admits the allegation of paragraph 3 of the Amended
Complaint.
JURISDICTION
4. Radiancy admits that, in commencing this action, TRIA has made
allegations that invoke the jurisdiction of this court, but otherwise lacks sufficient
knowledge or information at this time to form a belief as to the truth of the
remaining allegations in paragraph 4 of the Amended Complaint and therefore
denies them.
5. Radiancy admits for purposes of this action only that this Court may
exercise personal jurisdiction over Radiancy, but otherwise denies the allegations in
paragraph 5 of the Amended Complaint.
VENUE
6. Radiancy admits that this action may be brought in the Northern
District of California, but otherwise denies the allegations in paragraph 6 of the
Amended Complaint.
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Radiancy Inc.’s Answer and Affirmative Defenses to Tria Beauty, Inc.’s Amended Complaint; Radiancy, Inc.’s First Amended Counterclaims - Case No. CV10-5030-RS
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FACTUAL BACKGROUND
The TRIA LHRS
7. Radiancy admits that TRIA markets and sells a hair removal product
under the brand name TRIA Laser Hair Removal System (“TRIA Hair”), and that
the TRIA Hair is a hand-held device that consists of, among other things, a laser
light source. Radiancy lacks knowledge or information sufficient to form a belief as
to the truth of the remaining allegations in paragraph 7, and therefore denies them.
8. Radiancy lacks knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 8, and therefore denies them.
9. In response to paragraph 9 of the Amended Complaint, Radiancy
admits that the United States Food and Drug Administration (“FDA”) is charged
with the regulation of medical devices, and that a definition of “device” is provided
in section 201(h) of the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21
U.S.C. § 301, et. seq, and otherwise refers the Court to the contents of the FDCA,
and the relevant FDA regulations promulgated thereunder, for the conditions upon
which a medical device (as defined by the Act) may be approved or cleared to be
legally marketed and sold in the United States. Radiancy lacks knowledge or
information sufficient to form a belief as to the truth of the remaining allegations in
paragraph 9 of the Amended Complaint, and therefore denies them.
10. Radiancy lacks knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 10 of the Amended Complaint, and
therefore denies them.
The “no!no!” Hair
11. In response to paragraph 11, Radiancy admits that it markets and sells
an over-the-counter (“OTC”) consumer hair-removal product under the brand name
“no!no!” (“no!no! Hair”), and denies the remaining allegations in paragraph 11 of
the Amended Complaint.
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12. Radiancy admits that no!no! Hair consists of, among other things, a
rectangular metal casing and a replaceable thermal filament, and that, when used as
directed, the no!no! Hair removes hair. Radiancy also admits that the no!no! Hair
product includes a buffer pad, which may be used to clear the remnants of hairs that
have crystallized during the removal process. Radiancy denies the remaining
allegations in paragraph 12 of the Amended Complaint.
13. Radiancy admits the allegations of paragraph 13 of the Amended
Complaint.
14. Radiancy admits that the third-party re-sellers listed in the first
sentence of paragraph 14 of the Amended Complaint have sold or are currently
selling no!no! Hair. Radiancy lacks knowledge or information sufficient to form a
belief as to the truth of the allegations in the second sentence of paragraph 14 of the
Amended Complaint, and therefore denies them.
Radiancy’s Allegedly False and Misleading Advertising Claims About The
no!no! Hair
15. Radiancy admits that it has marketed various models of the no!no! Hair
to the general public through television and internet advertising since approximately
2007. Radiancy denies the remaining allegations in paragraph 15 of the Amended
Complaint.
16. Radiancy denies the allegations in paragraph 16 of the Amended
Complaint.
17. Radiancy admits that the phrase “Up to 94% Reduction in Hair Re-
Growth” has appeared on https://www.trynono.com/PS3/index.aspx?mid=807732,
that the phrase “Up to 94% less hair regrowth” has appeared on https://www.my-no-
no.com/, and that the phrase “with repeated use, hair density can be reduced by up to
94%” has appeared in the infomercial, but denies plaintiff’s characterization of the
quoted phrases. Radiancy denies the remaining allegations of paragraph 17 of the
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Amended Complaint.
18. Radiancy admits that the phrase “Now you finally have a solution that
lets you achieve long-term, professional quality hair removal results – in the comfort
of your own home!” and the phrase “Guaranteed long-term results” have appeared
on the https://trynono.com website, and that the phrase “Get rid of unwanted hair
and keep it gone” has appeared on the https://www.my-no-no.com website, but
denies plaintiff’s characterization of the quoted phrases. Radiancy admits that the
quoted phrases in the bullet points of paragraph 18 of the Amended Complaint have
been used on the referenced webpages, but denies plaintiff’s characterization of the
quoted phrases. Radiancy denies the remaining allegations of paragraph 18 of the
Amended Complaint.
19. Radiancy admits that the quoted words and phrases in paragraph 19 of
the Amended Complaint have been used on the referenced webpages, but denies
plaintiff’s characterization of the quoted words and phrases, and denies the
remaining allegations in paragraph 19 of the Amended Complaint.
20. Radiancy denies the allegations in paragraph 20 of the Amended
Complaint.
21. Radiancy admits that the quoted phrases in the bullet points of
paragraph 21 of the Amended Complaint have been used on the referenced
webpages and the infomercial, but denies plaintiff’s characterization of the quoted
phrases, and denies the remaining allegations in paragraph 21 of the Amended
Complaint.
22. Radiancy admits that the https://www.my-no-no.com website has
contained links to three clinical studies relating to no!no! Hair, and otherwise denies
the allegations in paragraph 22 of the Amended Complaint.
23. Radiancy lacks knowledge or information sufficient to form a belief as
to the truth of any allegation as to what TRIA “believes,” and therefore denies them.
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Radiancy denies any and all of the remaining allegations in paragraph 23 of the
Amended Complaint.
24. Radiancy admits that the website https://trynono.com/PS3/faq.aspx has
contained a link to a list of “Frequently Asked Questions”, and admits that the list
has contained the question “How long do results last?” with the answer “After 3-5
months of no treatments, hair might return to pretreatment values. You can easily
maintain results with continued use of no!no!” Radiancy denies all of the remaining
allegations in paragraph 24 of the Amended Complaint.
25. Radiancy denies the allegations in paragraph 25 of the Amended
Complaint.
26. Radiancy denies the allegations in paragraph 26 of the Amended
Complaint.
27. Radiancy admits that the https://trynono.com website contains a chart
comparing various attributes of no!no! Hair to other common methods of hair
removal, and otherwise denies the allegations in paragraph 27 of the Amended
Complaint.
28. Radiancy denies the allegations in paragraph 28 of the Amended
Complaint.
29. Radiancy denies the allegations in paragraph 29 of the Amended
Complaint.
30. Regarding paragraph 30 of the Amended Complaint, Radiancy states
that the allegations contained therein are matters of opinion and/or conclusions of
law (as opposed to allegations of fact), such that no response is required of
Radiancy. To the extent that paragraph 30 purports to state allegations of fact,
Radiancy is without knowledge or information sufficient to form a belief as to the
truth of those allegations, and therefore denies them.
31. Regarding paragraph 31 of the Amended Complaint, Radiancy states
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that the allegations contained therein are matters of opinion and/or conclusions of
law (as opposed to allegations of fact), such that no response is required of
Radiancy. To the extent that paragraph 31 purports to state allegations of fact,
Radiancy is without knowledge or information sufficient to form a belief as to the
truth of those allegations, and therefore denies them.
32. Radiancy denies the allegations in paragraph 32 of the Amended
Complaint.
33. Radiancy denies the allegations in paragraph 33 of the Amended
Complaint.
34. Radiancy admits that it markets a product called “no!no! Smooth,”
which is formulated with an ingredient called Capislow. Radiancy lacks sufficient
knowledge or information to form a belief as to the truth of the remaining
allegations in paragraph 34 of the Amended Complaint, and therefore denies them.
35. Radiancy admits that the quoted phrases in the first, fourth, fifth and
sixth bullet points of paragraph 35 of the Amended Complaint have been used on
the referenced webpages, but denies plaintiff’s characterization of the quoted
phrases, and denies the remaining allegations in paragraph 35 of the Amended
Complaint.
36. Radiancy denies the allegations in paragraph 36 of the Amended
Complaint.
37. Radiancy denies that the phrases “no pain”, “totally pain-free” and
“there’s no pain involved,” referenced in paragraph 37 appear at the referenced
weblinks. Radiancy admits that the remaining quoted words and phrases in
paragraph 37 have appeared at the referenced webpages, but denies TRIA’s
characterization of the aforementioned phrases. Radiancy denies the remaining
allegations of paragraph 37.
38. Radiancy admits that the quoted phrases in the bullet points of
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paragraph 38 of the Amended Complaint have been used on the referenced
webpages and infomercial, but denies plaintiff’s characterization of the quoted
phrases. Radiancy admits that the quoted phrases from the no!no! User’s Manual,
https://www.my-no-no.com/nono-how-to-use.asp and https://www.my-no-
no.com/nono8800about.asp have been used on the referenced sources, but denies
plaintiff’s characterization of the quoted phrases. Radiancy denies the remaining
allegations in paragraph 38 of the Amended Complaint.
The TRIA SCS
39. Radiancy admits that TRIA markets and sells an OTC acne treatment
device under the brand name TRIA Skin Clarifying System (“TRIA Acne”), and
that one of the components of the TRIA Acne is a handheld blue-light device sold
under the name TRIA Clarifying Blue Light (“TRIA Blue Light”). Radiancy lacks
knowledge or information sufficient to form a belief as to the truth of the remaining
allegations in paragraph 39, and therefore denies them.
40. Radiancy lacks sufficient knowledge or information to form a belief as
to the truth of the allegations in paragraph 40, and therefore denies them.
41. Radiancy admits that TRIA Acne includes a foam cleanser sold under
the name “Clarifying Foam Cleanser” and another component called the
“Rebuilding Complex.” Radiancy lacks sufficient knowledge or information to
form a belief as to the truth of the remaining allegations in paragraph 41, and
therefore denies them.
The no!no! Skin
42. Radiancy admits that it sells an FDA-cleared OTC device for the
treatment of acne called no!no! Skin, refers to the FDA’s publicly available 510(k)
clearance decision for its contents, and denies the remaining allegations of
paragraph 42.
43. Radiancy admits the allegations in the first and second sentence of
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paragraph 43 of the Amended Complaint. Radiancy lacks knowledge or information
sufficient to form a belief as to the truth of the allegations in the third sentence of
paragraph 43 of the Amended Complaint, and therefore denies them.
Radiancy’s Allegedly False And Misleading Advertising Claims About the
no!no! Skin
44. Radiancy denies the allegations in paragraph 44 of the Amended
Complaint.
45. Radiancy admits that the words and phrases listed in the bullet points of
paragraph 45 have been used at the referenced webpages, denies TRIA’s
characterization of the aforementioned phrases, and denies the remaining allegations
of paragraph 45.
46. Radiancy denies that the phrase “I’m not having breakouts anymore”
appears on www.nonoskin.com. Radiancy admits that the remaining words and
phrases listed in the bullet points of paragraph 46 have been used at the referenced
webpages, but denies TRIA’s characterization of the aforementioned phrases, and
denies the remaining allegations of paragraph 46.
47. Radiancy admits that the words and phrases listed in the bullet points of
paragraph 47 have been used at the referenced webpages, but denies TRIA’s
characterization of the aforementioned phrases, and denies the remaining allegations
of paragraph 47.
48. Radiancy admits that the words and phrases listed in the bullet points of
paragraph 48 have been used at the referenced webpages, but denies TRIA’s
characterization of the aforementioned phrases, and denies the remaining allegations
of paragraph 48.
49. Radiancy admits that the words and phrases listed in the bullet points of
paragraph 49 have been used at the referenced webpages, but denies TRIA’s
characterization of the aforementioned phrases, and denies the remaining allegations
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of paragraph 49.
FIRST CLAIM FOR RELIEF
FEDERAL UNFAIR COMPETITION
[Lanham Act § 43(a), 15 U.S.C. § 1125(a)]
50. In response to paragraph 50, Radiancy incorporates by reference and
re-alleges its responses to the allegations contained in paragraphs 1 through 49 of
the Amended Complaint.
51. Radiancy denies the allegations in paragraph 51 of the Amended
Complaint.
52. Radiancy denies the allegations in paragraph 52 of the Amended
Complaint.
53. Radiancy denies the allegations in paragraph 53 of the Amended
Complaint.
54. Radiancy denies the allegations in paragraph 54 of the Amended
Complaint.
55. Radiancy denies the allegations in paragraph 55 of the Amended
Complaint.
SECOND CLAIM FOR RELIEF
CALIFORNIA FALSE ADVERTISING
[Cal. Bus. & Prof. Code § 17500]
56. In response to paragraph 56, Radiancy incorporates by reference and
re-alleges its responses to the allegations contained in paragraphs 1 through 55 of
the Amended Complaint.
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57. Radiancy denies the allegations in paragraph 57 of the Amended
Complaint.
58. Radiancy denies the allegations in paragraph 58 of the Amended
Complaint.
THIRD CLAIM FOR RELIEF
UNFAIR COMPETITION
[Cal. Bus. & Prof. Code § 17200]
59. In response to paragraph 59, Radiancy incorporates by reference and
re-alleges its responses to the allegations contained in paragraphs 1 through 58 of
the Amended Complaint.
60. Radiancy denies the allegations in paragraph 60 of the Amended
Complaint.
61. Radiancy denies the allegations in paragraph 61 of the Amended
Complaint.
62. Radiancy denies the allegations in paragraph 62 of the Amended
Complaint.
63. Radiancy denies the allegations in paragraph 63 of the Amended
Complaint.
FOURTH CLAIM FOR RELIEF
INFRINGEMENT OF FEDERALLY REGISTERED TRADEMARKS
[Lanham Act § 32, 15 U.S.C. § 1114]
64. In response to paragraph 64, Radiancy incorporates by reference and
re-alleges its responses to the allegations contained in paragraphs 1 through 63 of
the Amended Complaint.
65. Radiancy denies the allegations in paragraph 65 of the Amended
Complaint.
66. Radiancy denies the allegations in paragraph 66 of the Amended
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Complaint.
FIRST AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint, in whole or in part,
fail to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint are barred, in whole or
in part, by TRIA’s unclean hands.
THIRD AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint are barred, in whole or
in part, by the doctrines of laches, waiver, and/or estoppel.
FOURTH AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint are barred, in whole or
in part, by the applicable statutes of limitations.
FIFTH AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint are barred, in whole or
in part, because TRIA’s claims have been filed for an improper purpose and lack a
reasonable good faith basis in fact.
SIXTH AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint are barred, in whole or
in part, because they are preempted by federal law.
SEVENTH AFFIRMATIVE DEFENSE
The allegations and claims in the Amended Complaint are barred, in whole or
in part, because they fall within the primary jurisdiction of the FDA.
EIGHTH AFFIRMATIVE DEFENSE
The claims for damages in the Amended Complaint are barred, in whole or in
part, because they are too remote and/or speculative.
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NINTH AFFIRMATIVE DEFENSE
Radiancy reserves the right to rely on all matters constituting an avoidance or
defense pursuant to Rule 8(c) of the Federal Rules of Civil Procedure or otherwise
to the extent that such defenses are supported by information developed through
discovery.
WHEREFORE, Radiancy demands judgment against TRIA: (a) dismissing
the Amended Complaint, with prejudice; (b) denying the relief requested by TRIA;
(c) awarding Radiancy its costs, expenses, attorneys’ fees and disbursements in
connection with the defense of this action; and (d) granting Radiancy such other and
further relief as this Court deems just and proper.
RADIANCY AMENDED COUNTERCLAIMS AGAINST TRIA
AND KIMBERLY KARDASHIAN
Radiancy, by and through its attorneys, for its Amended Counterclaims
against TRIA and Kimberly Kardashian, hereby states as follows:
1. This is an action for false advertising and unfair competition under
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and trademark infringement
under Section 32 of the Lanham Act, 15 U.S.C. § 1114 against TRIA Beauty, Inc.
(“TRIA”), and for related violations of California’s Unfair Competition Law, Cal.
Bus. & Prof. Code § 17200, et seq, and False Advertising Law, Cal. Bus. & Prof.
Code § 17500, et seq. against TRIA, and its celebrity endorser/spokesperson, Kim
Kardashian. The parties sell competing over-the-counter (“OTC”) consumer hair
removal and acne treatment products in the United States. This action arises out of
the advertising campaign for the TRIA OTC laser hair removal device, in which
TRIA and its endorser/spokesperson, Kim Kardashian (“Ms. Kardashian”), make
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materially false and misleading claims about the efficacy of the TRIA hair removal
product, and out of the advertising campaign for TRIA’s OTC acne treatment blue
light system, in which TRIA makes materially false and misleading claims about the
efficacy of its acne product.
2. TRIA’s false and misleading advertisements, and wrongful use of
Radiancy’s trademarks, have deceived and confused, and will continue to deceive
and confuse, consumers into purchasing TRIA’s hair removal and acne treatment
products, and is thereby causing Radiancy substantial injury in the relevant product
markets in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). In
addition, TRIA’s wrongful actions, as well as the actions of Ms. Kardashian, have
deceived consumers and caused Radiancy to suffer a loss of money and property, in
violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200,
et seq, and False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq.
The Parties
3. Radiancy is a Delaware corporation with its principal place of business
in Orangeburg, New York.
4. Upon information and belief, TRIA is a Delaware corporation, with its
principal place of business in Dublin, California.
5. Upon information and belief, Ms. Kardashian is a citizen of the state of
California, and resides in or near the city of Los Angeles.
Jurisdiction
6. This Court has jurisdiction over the claims against TRIA under 15
U.S.C. § 1121, and 28 U.S.C. §§ 1331, 1332 and 1338, and under the principles of
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
7. This Court has personal jurisdiction over TRIA because TRIA’s
principal place of business is in California, and, upon information and belief, TRIA
sells its products and offers its products for sale (including through the
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advertisements that are the subject of this action) in California.
8. This Court has jurisdiction over the claims against Ms. Kardashian
under the principles of supplemental jurisdiction pursuant to 28 U.S.C. § 1332,
because there is diversity of citizenship between Radiancy and Ms. Kardashian, and
the amount in controversy exceeds $75,000, exclusive of interest and costs.
9. This Court has personal jurisdiction over Ms. Kardashian because,
upon information and belief, she is a citizen of California, has contracted to do
business with a TRIA, a corporation with its principal place of business in
California, and has advertised, solicited or encouraged the sale of the TRIA Hair in
California.
Venue
10. As to the claims against TRIA, venue is proper pursuant to 28 U.S.C. §
1391(b).
11. As to the claims against Ms. Kardashian, venue is proper pursuant to 21
U.S.C. § 1391 (a).
Intradistrict Assignment
12. Intradistrict assignment to the San Francisco Division is proper
pursuant to Civil L.R. § 3-2(c) because a substantial part of the events or omissions
that give rise to this action occurred in this judicial district.
Facts Common To All Claims For Relief
The Parties and Their Products
13. Radiancy and TRIA are competitors in the home hair removal and
home dermatology markets in the United States.
14. Radiancy markets and sells its products under the no!no! brand
(“no!no!”) as the no!no! Hair (for hair removal) and no!no! Skin (for dermatological
treatment).
15. TRIA markets and sells its products under the TRIA brand; its hair
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removal product is called the TRIA Laser Hair Removal System (“TRIA Hair”) and
its skin product is called the TRIA Skin Clarifying System (“TRIA Acne”).
16. The TRIA Hair product consists of, among other things, a laser light
source contained within a plastic housing.
17. TRIA Acne is a three-step treatment regime which consists of: 1) the
Clarifying Foam Cleanser (“Cleanser”) containing, among other things, salicylic
acid; 2) the Clarifying Blue Light device (the “Blue Light”); and 3) the Skin
Clarifying Rebuilding Complex (the “Complex”), which also contains salicylic acid.
The Blue Light is a handheld device consisting of, among other things, light
emitting diodes (“LEDs”) contained within a plastic housing.
18. Both TRIA Hair and TRIA Blue Light are regulated by the FDA as
Class II laser medical devices under the FDCA, as amended by the Medical Device
Amendments of 1976 (“MDA”), 21 U.S.C. §§360c-360dd, and the federal
regulations and guidelines promulgated thereunder.
19. TRIA distributes TRIA Hair nationally through its websites at
http://www.triabeauty.com and http://www.trytrialaser.com, and its toll-free
telephone numbers at 1-800-398-9530 and 1-800-398-1697. TRIA also distributes
TRIA Hair through third-party online and in-store re-sellers, including but not
limited to Nordstrom, Neiman Marcus, Bloomingdales, Amazon.com, QVC, Bliss
Spas, and various other spas and dermatologist offices.
20. TRIA distributes TRIA Acne nationally through its websites at
http://www.triabeauty.com and http://www.trytriablue.com, and its toll free number
at 1-800-398-1903, as well as through third-party online and in-store re-sellers,
including but not limited to Nordstrom, Neiman Marcus, Bloomingdales,
Amazon.com, and QVC.
21. In connection with the sale of TRIA Hair and TRIA Acne, TRIA has
conducted a national advertising campaign, through internet advertising,
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infomercials, and, upon information and belief, appearances by paid spokespersons
on various television talk shows and news shows.
TRIA’s False And Misleading Advertisements For TRIA Hair
Claims That Using TRIA Hair Results In Permanent Hair Removal
22. In its labeling and advertising for TRIA Hair, TRIA falsely and
misleadingly claims that TRIA Hair provides users with permanent hair removal.
23. For instance, at http://www.trytrialaser.com (last visited on
11/30/2010), TRIA claims in a large bold font “permanent hair removal is our
promise;” beneath this claim, in slightly smaller typeface, it claims “The TRIA
Laser is the only way to get permanent hair removal at home – guaranteed.” On the
frequently asked questions (“FAQ”) page of the same website,
http://www.trytrialaser.com/faqs.aspx (last visited 11/30/2010), in response to the
question “Are the results permanent?” TRIA claims “In as little as 90 days, you’ll
see permanent results—and in 6 months, you’re done!”
24. Similarly, at http://www.triabeauty.com (last visited on 11/30/2010)
TRIA claims that users of its device may “take a permanent holiday from unwanted
hair,” and at http://www.triabeauty.com/info/hair-removal-faqs.htm (last visited on
11/30/2010), in response to the question on its FAQ page “Are the results
permanent?” TRIA makes the claim: “In as few as eight treatments you’ll never
have to shave or wax again. End of story.” Likewise, on another page of the
triabeauty.com website, http://www.triabeauty.com/tria-laser-hair-removal-system
(last visited on 11/30/2010), TRIA claims “Get permanent hair-free results at home
– guaranteed!”
25. The TRIA packaging and labeling makes the claims “No more endless
shaving * No more endless waxing,” and “Stop shaving. Stop waxing.”
26. TRIA also runs an Infomercial for TRIA Hair (“Hair Removal
Infomercial”) which is replete with claims that TRIA Hair provides permanent hair
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removal. For instance, the Hair Removal Infomercial states that “Now you can get
rid of hair forever, with the Tria Laser,” and that consumers can “get permanent
results and be free from unwanted hair, for good.”
27. The Hair Removal Infomercial makes similar claims, such as, “Now
you can get permanent hair removal at home with the Tria Laser…”; “Permanent
hair removal, that’s right, I said it – permanent…it’s the first and only real laser hair
removal treatment to achieve permanent hair removal, at home” ; and “what can you
do with the TRIA? Permanent hair removal.”
28. In addition, the Hair Removal Infomercial falsely claims that TRIA
Hair “is the first technology to really deliver permanent hair free results,” and that
women are “experiencing the freedom of being hair free and care free for life.”
(emphasis added)
29. Both of TRIA’s websites contain similar false and misleading claims of
permanent hair removal. At http://www.triabeauty.com/info/hair-removal-
permanent-results.htm (last visited 12/2/10), TRIA claims “Experience the
permanent results that only genuine laser hair removal can provide,” and “The TRIA
Laser Hair Removal System is the first and only FDA-cleared laser hair removal
system available that uses the same trusted laser technology as the professionals and
provides the same results—at home.” At
http://www.trytrialaser.com/howitworks.aspx (last visited 12/2/10), TRIA claims “In
as little as six months, you’ll be done. The hair will be gone forever - like the hair
was never there!” At http://www.triabeauty.com/tria-laser-hair-removal-system.htm
(last visited 7/19/10) TRIA advertises that consumers should “[i]magine a place
where showing a little skin doesn’t require any grooming maintenance whatsoever”
and that its product is “the only hair removal laser that delivers professional,
permanent results in the comfort of your home.” At http://www.triabeauty.com/
(last visited 7/19/10) TRIA advertises that consumers can “[f]ree yourself from a
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lifetime of shaving and waxing without one trip to the doctor’s office or spa with
our professional-grade, at-home Hair Removal Laser.”
30. Similar claims also appear on TRIA’s Facebook page: “Discover more
about the TRIA Laser – the first and only FDA-cleared at-home laser hair removal
device that delivers permanent results” and “The TRIA Laser Hair Removal System
is designed to gently disable hair growth so that your skin remains smooth and hair-
free – permanently.” (found at: http://www.facebook.com/triabeauty?v=feed&
story_fbid=174763155983#!/triabeauty?v=info (last visited 12/9/2010)) (emphasis
added).
31. TRIA has also made these false and misleading permanent hair removal
claims through its Twitter account. For example, on August 15, 2010, TRIA
‘tweeted’, “TRIA Laser Hair Removal System will have you living happily ever
after with beautifully hair free skin!” (found at: http://twitter.com/TRIABeauty (last
visited 12/9/10)).
32. TRIA’s claims of permanent hair removal are contradicted by the
Instructions for Use for TRIA Hair, which indicate (on page 8) that “occasional
touch-ups” may be necessary, even after the recommended eight months of
treatment, and by the publicly available FDA clearance letter for TRIA Hair, which
states that the device was indicated for the “permanent reduction in hair
regrowth…” (emphasis added), not “permanent hair removal.”
33. Published articles regarding the efficacy of TRIA Hair further
demonstrate the falsity of TRIA’s permanent hair removal claims. For instance, a
clinical assistant professor at the Yale School of Medicine explained, in a December
2008 issue of Allure magazine, that “…the Tria isn’t as powerful as a doctor’s
machine and will likely result in the thinning and lightening of dark hair, rather than
the permanent removal of it.” Also, in a June 2010 issue of Oprah magazine, the
reviewer stated that even after the recommended eight months of treatment “I shave
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any remaining fuzz about every two weeks (and do a touch-up laser treatment about
every four).” An article on TRIA Hair in a July 2008 issue of Lucky states that
“Most people do need a once yearly touch up after six months of treatments,
though.”
34. One clinical study on the safety and efficacy of TRIA Hair by Ronald
G. Wheeland, MD, FACP, which was published in a 2007 issue of Lasers in Surgery
and Medicine showed that, study subjects who completed the recommended regime
of three treatments at three-week intervals reported various percentages of hair
regrowth at the one-month, three-month and twelve-month marks following the
third treatment.
35. TRIA’s repeated claims of “permanent results” are also false and
misleading because TRIA does not adequately disclose to consumers that
“permanent” is defined in the industry only as a long-term (four to twelve month)
stable reduction in hair regrowth, following a treatment regime, and does not mean
that users will experience a permanent reduction in the total number of body hairs or
permanent reduction in the removal of all body hair.
36. TRIA’s advertising also conveys the false and misleading message that
TRIA Hair was cleared or approved by the FDA for permanent hair removal.
37. For instance, in an on-air QVC presentation for TRIA Hair (available
at: http://www.qvc.com/qic/qvcapp.aspx/view.2/app.detail/params.item.A97878.
desc.Tria-Beauty-At-Home-Laser-Hair-Removal-System-with-Body-Wash (last
visited 12/9/10)), the QVC host claims that, “Again, this is FDA cleared for
permanent hair removal.” (Emphasis added.) Upon information and belief, the
QVC Commercial first aired in or around October 2009; as of December 9, 2010, it
is still available on QVC.com.
38. Similarly, the Hair Removal Infomercial claims that “Now you can get
rid of hair forever, with the Tria Laser, the first and only FDA cleared hair removal
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laser for use at home, get permanent results and be free from unwanted hair, for
good.” (Emphasis added.) While this claim is spoken, a picture of the TRIA device
is shown, along with the claim “real laser. permanent results.” at the bottom of the
screen, and, in the upper right hand corner of the screen, a gold badge with the
words “PROVEN * FDA cleared * SAFE & EFFECTIVE” written inside it. The
Hair Removal Infomercial also claims that, “Now you can get permanent hair
removal at home with the Tria Laser, the first and only FDA cleared hair removal
laser available for home use.” (Emphasis added.)
39. Eric F. Bernstein, MD, who is credited in the Hair Removal
Infomercial as a board certified dermatologist, laser surgeon and an equity holder in
TRIA Beauty, makes the claim, “TRIA is the only FDA-cleared laser for home laser
hair removal and, what can you do with the TRIA? Permanent hair removal.”
(emphasis added)
40. Currently, the FDA does not permit manufacturers of laser hair removal
devices to advertise their products as providing permanent hair removal. Instead,
provided the FDA finds there is sufficient data to support the claim, the FDA may
clear a laser hair removal device to be marketed for the intended use in hair removal
sustained by periodic treatments and for permanent reduction in hair regrowth,
defined as a stable, long-term, or permanent reduction in the number of hairs re-
growing following a treatment regime, where the reduction is stable over a time
greater than the duration of the complete growth cycle of the hair follicles, which
may vary from four to twelve months, depending on where the hair is located on the
body.
41. Upon information and belief, in December of 2009, TRIA Hair was
cleared by the FDA to be marketed as an OTC device intended for “adjunctive use
with shaving for hair removal sustained with periodic treatments” and for the
“permanent reduction in hair regrowth defined as a long-term stable reduction in
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hair counts following a treatment regime,” but was not cleared to be marketed for
permanent hair removal.
42. False and misleading statements regarding the FDA approval or
clearance of an OTC device for permanent hair removal are material, and likely to
influence the purchasing decisions of a substantial number of consumers. TRIA’s
Hair Removal Infomercial reinforces the importance of an “FDA cleared” claim by
showing Rebekah George, a fashion and beauty editor, states that “Knowing that the
Tria Laser is FDA cleared is so important to me as a beauty influencer, because you
know that it’s that stamp of approval that is safe and effective…”
Claims That TRIA Hair Is “Safe and Effective”
43. TRIA makes numerous unqualified claims on its websites that TRIA
Hair is safe and effective (see, e.g., “FDA-cleared safe, effective, permanent results”
(at http://www.trytrialaser.com/ (last visited 12/1/10)) and “FDA-cleared safe and
effective” (at http://www.triabeauty.com/tria-laser-hair-removal-system (last visited
12/1/10)) and in its Hair Removal Infomercial (e.g., “Knowing that the Tria Laser is
FDA cleared is so important to me as a beauty influencer, because you know that
it’s that stamp of approval that is safe and effective…”).
44. TRIA’s unqualified claims of safety and efficacy are false and
misleading, because TRIA’s device is not “safe” for certain skin tones or on certain
areas of the body, and is not “effective” on certain shades of hair.
45. For instance, the TRIA Hair packaging cautions that the device should
not be used “if you have dark skin tones,” (described as medium brown, dark brown
and black skin), and that if used on dark skin the device can “burn, discolor, or scar”
the skin.
46. Similarly, the TRIA packaging warns that the device is not safe to use
“on or around the eyes, eyebrows, or eyelashes,” because doing so “can cause
serious and permanent eye injury,” and further warns the device is not safe for use
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on the “face, head, ears, neck, nipples, or genitals, or around the anus,” because
“using the TRIA System there may injure the skin.”
47. Likewise, the TRIA packaging and the Instructions for Use for TRIA
Hair caution that the device only “works on naturally brown or black hair. It does
NOT work on white, gray, blond, or red hair, even if the hair is dyed a darker color.”
(emphasis in original)
48. Similar warnings appear in published articles reviewing the device.
49. However, neither the unqualified “safe and effective” claims in the Hair
Removal Infomercial nor those on the website adequately disclose to consumers that
the device is only “safe and effective” for a limited segment of the relevant
consumer population, and, even then, it is only safe to be used on some, but not all,
parts of the body.
50. TRIA’s unqualified statements of safety and effectiveness as alleged
herein are likely to mislead a significant number of consumers for whom TRIA Hair
is not safe or effective into purchasing the product.
Claims that TRIA Hair Is Equivalent To Professional Laser Hair Removal
51. Both of TRIA Hair’s websites falsely claim that TRIA Hair is the
equivalent, in technology and results, to professional laser hair removal performed
by doctors. For instance, at http://www.trytrialaser.com/, TRIA claims “get the
same results as professional laser hair removal, for thousands of dollars less.”
Similarly, at http://www.triabeauty.com/info/hair-removal-permanent-results.htm,
TRIA claims, “The TRIA Laser Hair Removal System is the first and only FDA-
cleared laser hair removal system available that uses the same trusted laser
technology as the professionals and provides the same results—at home,” and at
http://www.triabeauty.com/info/hair-removal-save-money.htm, TRIA claims that
“[t]he TRIA Laser delivers the same permanent results at a fraction of the cost of
professional treatments.”
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52. Likewise, the Hair Removal Infomercial for TRIA Hair repeatedly
equates the device to professional laser hair removal treatments, making claims such
as, “only Tria uses the same laser technology as dermatologists, with the same
permanent results,” and “the Tria Laser is the same laser dermatologists use and
gives you the same permanent results, for your entire body, without the
appointments and for a lot less money.”
53. In one scene from the Hair Removal Infomercial, one of TRIA’s
founders, Dr. Robert Grove, points to a large, professional-looking laser device, and
says, “here is the Light Sheer, as you can see, it is a huge machine. We figured out
a way to harness the same technology...into a device small enough and light enough
and safe enough and powerful enough to get those same professional permanent
results but now in the privacy and convenience of your own home.”
54. In the same scene of the Hair Removal Infomercial, the host, Ereka
Vetrini, says, “It really is amazing, I mean the Tria Laser is the same laser hair
removal technology with the same permanent results that you get in a dermatologist
office. So this [holds up TRIA device] does exactly what that [gesturing to
professional device] does.”
55. The above claims are false and misleading because the TRIA device is
not based on the same technology as professional devices and cannot provide users
with the same results as laser hair removal treatments performed in doctors’ offices.
56. For instance, professional devices such as the one depicted in TRIA’s
Hair Removal Infomercial, are more powerful, because they use a columnated beam
of light, instead of the diffused beam used by TRIA Hair.
57. Furthermore, upon information and belief, professional laser hair
removal can be performed on the face, and on dark skin tones, whereas the TRIA
device is not safe or effective for those uses.
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Claims That TRIA Hair Is Painless
58. TRIA’s advertising also falsely claims that users of TRIA Hair will not
experience any pain.
59. For instance, at http://www.trytrialaser.com/testimonials.aspx, TRIA
posts a quote from a purported TRIA Hair user, Christina S., who states “I was
really happy that it wasn’t painful.” This user also appears in the TRIA Hair
Removal Infomercial, making the same claim.
60. TRIA posts another claim from a purported “TRIA Beauty Customer”,
Darlene S., who claims that TRIA Hair is “virtually painless.”
61. In the Hair Removal Infomercial, host Ereka Vetrini claims that “even
on the highest level I just feel a little pinch.” Later in the Infomercial, another host,
Kylie Jay, asks purported first time TRIA users, “It’s not uncomfortable at all?”
One user replies, “not at all,” and another states that it’s “maybe like a little snap.”
62. However, a simulated consumer use study on the device sponsored by
TRIA (then-known as SpectraGenics) demonstrated that a significant number of test
subjects reported feeling pain, ranging on scale from ‘slight’ to ‘severe’. One test
subject even reported feeling that “the pain level was severe enough to request being
dropped from the study.”
63. Even articles reviewing the product have cautioned that users will
experience pain. For instance, in the June 2010 issue of Oprah magazine, the
review of the TRIA Hair device states, “Aaak! Eeep! Owww! That’s the audio
version of my at-home laser hair removal project…Why the sound effects? Because
the process hurts.”
Claims That TRIA Hair Is The “First” and “Only” At-Home Laser
Hair Removal Device
64. The TRIA Hair Removal Infomercial contains numerous false and
misleading claims that TRIA Hair is the “first” and/or “only” laser hair removal
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device that is cleared for at-home use, such as:
“the TRIA is the only FDA cleared laser for home hair removal,”
“Tria Laser, the first and only FDA cleared hair removal laser for
use at home”
“Now you can get permanent hair removal at home with the Tria
Laser, the first and only FDA cleared hair removal laser available
for home use.”
65. Similar claims appear on TRIA’s websites, and on their Facebook page:
“The TRIA Laser is the first and only FDA-cleared laser hair
removal system available for use at home.” (found at:
http://www.trytrialaser.com/faqs.aspx (last visited 12/9/2010)).
“The TRIA Laser Hair Removal System is the first and only FDA-
cleared laser hair removal system available that uses the same
trusted laser technology as the professionals and provides the same
results—at home.” (found at: http://www.triabeauty.com/info/hair-
removal-permanent-results.htm (last visited 12/9/2010)).
“Discover more about the TRIA Laser – the first and only FDA-
cleared at-home laser hair removal device that delivers permanent
results.” (found at:
http://www.facebook.com/triabeauty?v=feed&story_fbid=17476315
5983#!/triabeauty?v=info (last visited 12/9/2010)).
66. These claims are also repeated in the QVC Commercial. In the
Commercial, the QVC host claims, “and it is the only one that is FDA cleared for at
home use,” and the TRIA spokesperson, Dr. Eric Bernstein, agrees, claiming, “it is
the only laser you can buy at home that is FDA cleared.”
67. However, TRIA Hair is not the only laser hair removal device cleared
by the FDA for at home use. The Flash N’ Go device by Home Skinovations, Ltd.
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was cleared by the FDA for OTC use as a hair removal device in October of 2008,
and is also cleared by the FDA to be marketed for use in the permanent reduction of
hair re-growth.
68. Nor, upon information and belief, was TRIA the “first” laser hair
removal device to be cleared by the FDA for at-home hair removal. Upon
information and belief, the ABC Hair Removal System by Palomar Technologies
was cleared for OTC use in 2006, whereas TRIA Hair did not receive OTC
clearance from the FDA until some time in 2008.
False And Misleading Claims Made By TRIA Spokesperson Kim Kardashian
69. In or around December 2010, TRIA began using Kim Kardashian as a
paid celebrity spokesperson for TRIA Hair.
70. Shortly thereafter, Kim Kardashian, in her capacity as a paid
spokesperson, began promoting and advertising the TRIA Hair product on talk
shows, in interviews, and in her Twitter feed, where she repeated many of the same
false statements about the TRIA Hair that had appeared in TRIA’s other advertising.
71. For instance, during Kim Kardashian’s appearance on CBS Network’s
“The Early Show”, on or about December 10, 2010, she repeated the false claim that
TRIA Hair is the “only” FDA-cleared at home laser hair removal treatment available
to consumers. See http://www.facebook.com/video/video.php?v=1617432169852
(last visited 6/1/11).
72. She repeated this false and misleading claim during her appearance on
the Rachel Ray Show, on or about December 16, 2010, stating that TRIA Hair is
“the first FDA product that is cleared, and you can use it at home.” See
http://www.youtube.com/watch?v=eZzP70Ndz-8 (last visited 6/1/11).
73. Ms. Kardashian’s Rachel Ray appearance was deceptive in yet another
respect. Ms. Kardashian offered the TRIA Hair as the purported “solution” to the
problem of a viewer who complained about having unwanted hair “all over [her]
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body”, and who was shown in a video plucking her eyebrows and bleaching the
hairs on her upper lip. Although Ms. Kardashian gave the viewer a free TRIA Hair
device, Ms. Kardashian failed to disclose to the viewer, or the viewing audience,
that TRIA Hair cannot be used on the face.
74. On or about May 2, 2011, Ms. Kardashian appeared on the Wendy
Williams Show, where she made a number of false and misleading statements about
TRIA Hair. For instance, she again stated that TRIA Hair is the “first FDA-cleared
at home” laser hair removal product. See http://www.youtube.com/watch?v=R7ks-
oTS6y8 (last visited 6/1/11).
75. Also during her Wendy Williams appearance, Ms. Kardashian falsely
claimed that TRIA Hair provided permanent hair removal, stating that TRIA Hair
users will “never have to buy a razor or shaving cream” again.
76. Ms. Kardashian failed to disclose during this appearance that TRIA
Hair could not be used on all hair or skin types, or that it could not be used on all
parts of the body – in fact, to the contrary, Ms. Kardashian falsely claimed that she
uses it “on [her] entire body.”
77. Shortly thereafter, on or about May 4, 2011, Ms. Kardashian appeared
on Fox News to advertise and promote the TRIA Hair. During this appearance she
again falsely claimed that TRIA Hair is the “first FDA-cleared product in laser hair
removal.” This false claim was accompanied by on-screen text which made the
even more egregiously false claim that TRIA Hair was “FDA Approved.” TRIA
Hair was cleared for sale by the FDA through the 510(k) application process, not the
more rigorous pre-market approval process, and therefore cannot claim to be an
“FDA Approved” device. See http://ht.ly/4O3F6 (last visited 6/2/11).
78. Additionally, on December 22, 2010, Ms. Kardashian “tweeted”
through her Twitter account that “I’ve been using the @TRIABeauty Laser since
they first sent it to me to try & Im [sic] loving the results so far!” This statement
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was “re-tweeted” by TRIA through TRIA’s Twitter account. See
http://twitter.com/#!/TRIABeauty (last visited 6/2/11).
79. Upon information and belief, Ms. Kardashian is not a bona fide user of
the TRIA Hair product and thus the above “tweet” – as well as her other public
statements with regard to the TRIA product – are false and or misleading, and in
violation of the FTC Guidelines Concerning the Use of Endorsements and
Testimonials in Advertising.
80. Many of Ms. Kardashian’s own statements reveal that she is not a bona
fide user of the product.
81. For instance, Ms. Kardashian’s statement on the Wendy Williams
Show that she doesn’t have any hair “because [she] uses it on [her] entire body,”
indicates that she is not familiar with the device or how it is used.
82. Likewise, her statement on that same show that a person using TRIA
never has to buy a razor or shaving cream again also shows that she has not used the
device. The instructions for use states that the system is “intended for adjunctive
use with shaving” and it tells users to “cleanse, shave, and dry [the] skin” first
before treating the skin with the laser, that between treatments the user can shave,
and that “occasional touch-ups” may be necessary for users even after the
recommended eight-month treatment period.
83. Moreover, upon information and belief, Ms. Kardashian only became a
spokesperson for TRIA in early December, just a few short weeks before she began
advertising the TRIA Hair. Thus contrary to her “tweet” on December 22, 2010,
that she was “loving the results so far,” she could not possibly have been seeing any
“results” from any use of TRIA Hair at that time. According to TRIA’s own
website, a user will not “begin to see results” for at least 90 days, and would not see
any “permanent” results for at least 6 months. See
http://www.trytrialaser.com/faqs.htm (last visited 6/2/11).
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84. Similarly, upon information and belief, her appearances on the Early
Show and the Rachel Ray show were also made before Ms. Kardashian could
possibly have had time to experience any noticeable hair removal results from using
TRIA.
85. Furthermore, even if Ms. Kardashian had been using the TRIA Hair for
the at least the 6 months it would take (according to TRIA’s website) to experience
any “permanent” reduction in hair, Ms. Kardashian’s statements are still false and
misleading in yet another respect: since Ms. Kardashian has admitted on numerous
occasions (including during the Early Show, Rachel Ray and Wendy Williams
appearances described above) that she has been receiving “professional” laser hair
removal treatments for almost a decade, any “results” she may experience, or have
experienced, as a result of her alleged use of the TRIA Hair, would not be typical of
what the majority of consumers would experience.
86. However, at no time during her promotional appearances for TRIA
does she disclose the fact that her results are atypical consumers.
87. Nor has TRIA made any attempt to qualify any of Ms. Kardashian’s
public statements. To the contrary, TRIA compounds the falsity of these statements
by using Ms. Kardashian’s results to convey the false message to consumers that
they can have the same results as Ms. Kardashian. For instance, on May 4, 2011,
TRIA posted a link to Ms. Kardashian’s Wendy Williams Show appearance on the
TRIA Beauty Facebook page, stating “Kim’s right: hairless is best!” See
http://www.facebook.com/triabeauty?sk=wall&filter=2 (last visited 6/10/11).
88. In addition, in an April 18, 2011 post to its Facebook page, TRIA tells
consumers: “Get hair-free forever – just like Kim Kardashian.” See Id.
89. Ms. Kardashian’s false and misleading statements regarding the TRIA
Hair are material, and, due to her celebrity status, her statements are likely to
influence the purchasing decisions of a substantial number of consumers.
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TRIA’s False And Misleading Advertisements Regarding TRIA Acne
TRIA Acne’s Superiority Claims
90. TRIA’s advertising for TRIA Acne repeatedly claims to be superior to
any and all existing acne treatments.
91. For instance, in an April 5, 2010 press release on the triabeauty.com
website (at: http://www.triabeauty.com/medias/sys_master/8799244451870.pdf (last
visited 12/9/2010)), TRIA claims that its system is “clinically-proven to clear acne
breakouts three times faster than any other leading acne treatment* (* Based upon
comparisons to published clearance rates and physician assessment of prevention).”
Nowhere in the press release does TRIA disclose the “leading acne treatments” to
which TRIA compares itself.
92. In the same press release, Mike O’Neil, Ph.D, TRIA’s Director of
technology development is quoted as saying, “Research shows that our system is
superior to any other acne treatment available, without the harsh drying, irritation
and premature aging side effects typical of most acne treatments.”
93. TRIA also claims, “TRIA Beauty’s scientists created the most
advanced blue light treatment available today, and made it safe and simple for you
to use at home. See clear skin faster and better than any other acne treatment you’ve
ever used before, or your money back!” (found at:
http://www.triabeauty.com/info/what-is-tria-blue-light-therapy.htm (last visited
12/9/10) (emphasis in original). Similarly, at http://www.trytriablue.com/faqs.aspx
(last visited 12/9/2010), TRIA claims that its “Clarifying Blue Light is the most
advanced blue light therapy available today made safe and simple for you to use at
home.” (Emphasis added.)
94. Furthermore, in the Infomercial for TRIA Acne (“Acne Infomercial”),
TRIA claims that TRIA Acne “bathes your skin in natural, healthy blue light to clear
breakouts three times faster and prevent breakouts better than any other leading acne
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treatment available on tv, in stores, online, or even from a doctor.” While this claim
is made in the Infomercial, a chart is shown onscreen, purportedly comparing TRIA
to “other treatments.” The chart depicts TRIA as ranging from around 5%
‘effective’ at week 1, to being up to 70% effective at an unmarked time point, while
a number of unspecified “other treatments” are shown as ranging from less than 5%
at week 1 to less than 30% at the latest unmarked time point. At the bottom of the
screen, beneath the chart is a nearly illegible qualifier stating “Based on
comparisons to published clearance rates and physician assessment of prevention.”
Nowhere in the Acne Infomercial does TRIA disclose the “other treatments” to
which TRIA compares itself.
95. The TRIA Acne brochure also claims that it “clears acne breakouts
faster than any other leading acne treatment.”
96. Upon information and belief, TRIA’s superiority claims, such as those
alleged herein, are false because other acne treatments are just as effective, if not
more effective, in treating acne than TRIA Acne.
97. For instance, both a March 2009 article in The Journal of Clinical and
Aesthetic Dermatology and an August 2010 article in The Journal of the American
Academy of Dermatology article state that the current most effective treatment
available for acne vulgaris is oral isotretinoin, a prescription medication available
from doctors.
98. One study comparing the efficacy of blue light therapy to that of
benzoyl peroxide (an active ingredient found in many OTC acne products) on test
subjects with acne grades II and III, found that the improvement achieved by
benzoyl peroxide was the same as that achieved by the blue light therapy.
99. There are also other published articles and studies which indicate that
treatment of acne with a combination of blue and red light therapy may be more
effective than treatment with blue light alone.
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Claims That TRIA Blue Light Is Equivalent To Professional Blue Light Therapy
100. TRIA’s advertising falsely and misleadingly claims that the Blue Light
included with its acne product provides the same blue light therapy that a consumer
would obtain from a dermatologist.
101. For instance, TRIA makes the following claims on its websites:
“…TRIA is the first and only acne system to provide the same blue
light therapy and guarantee the same great results that
dermatologists have offered exclusively in their offices since 2002.”
(found at: http://www.triabeauty.com/medias/sys_master/
8799244517406.pdf (last visited 12/9/2010).
“Until now, therapeutic doses of blue light were only available by
appointment in a doctor’s office…” (Found at:
http://www.triabeauty.com/medias/sys_master/8799244484638.pdf
(last visited 12/9/2010).
“TRIA Beauty developed a technology that delivers up to 10 times
more blue light than other OTC blue light devices – and the same
levels of blue light as professional systems used in dermatologists’
offices.” (Found at: http://www.triabeauty.com/medias/sys_master
/8799244451870.pdf (last visited 12/9/10)).
“Dermatologists have used blue light therapy in their offices since
2002 – now, get the same professional results at home, for a lot
less.” (Found at: http://www.trytriablue.com/ (last visited
12/9/2010).
“The TRIA Skin Clarifying System offers up to 10x more blue light
than other at-home devices. It’s the only way to achieve the same
skin-clearing and brightening results as professional treatments in
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just minutes per day.” (Found at: http://www.trytriablue.com/
faqs.aspx (last visited 12/10/10)).
102. In addition to the claims on TRIA’s websites, the Acne Infomercial
shows a large professional blue light device, which is referred to as “the
ClearLight”, after which the infomercial host, Ereka Vetrini, holds up the TRIA
Blue Light and says “I want to make sure everybody understands this does exactly
what [gesturing to the “ClearLight” machine] this does.”
103. The Acne Infomercial also falsely claims that “only the TRIA
clarifying blue light has the same professional strength that dermatologists use,” and
that consumers will receive these professional results by using the device just 2 ½
minutes, twice a day.
104. For example, Dr. Zakia Rahman, who is credited in the Acne
Infomercial as being a board-certified dermatologist and ‘international light therapy
expert,’ comparing the TRIA Blue Light to professional blue light therapy, claims,
“each professional treatment takes about 20 minutes or more, two to three times a
week, for weeks at a time. And, in contrast, the TRIA blue light takes only about 2
½ minutes, twice a day.”
105. A voiceover in the Acne Infomercial further claims that “it only takes 2
½ minutes, twice a day to treat your entire face.” (emphasis added).
106. A recently aired QVC commercial for TRIA Acne repeats these false
claims. In the QVC commercial, the host, speaking with Dr. Eric Bernstein, says
“This is the real deal, and this is the same technology you use in your practice.” Dr.
Bernstein agrees, “Absolutely.” See http://www.qvc.com/qic/qvcapp.aspx/view.2/
app.detail/params.item.A215151.desc.TRIA-Skin-Clarifying-System-BeClear-Kit-
wBonusCartridge (last visited 12/13/10).
107. However, according to TRIA Acne’s Instructions for Use, in order to
get the advertised results and the alleged “professional strength” blue light
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treatment, the user is required to spend that 2 ½ minutes, twice a day, treating one
approximately 3.3cm x 3.3cm patch of skin. If additional 3.3cm x 3.3cm areas are
to be treated, it will require an additional 5 minutes a day to treat each additional
area.
108. In contrast, professional blue lights like the one featured in the Acne
Infomercial are capable of treating a large area, such as the entire face, all at once.
109. The Acne Infomercial also shows various TRIA Blue Light users
running the device over their face, covering the entire area in just a few seconds.
This demonstration conveys the message to consumers that they can obtain the
advertised results of the bluelight treatment by just waving the light over their entire
face. This message is false, and is contradicted by the product’s own instructions
for use.
110. The demonstration is also false and misleading because, if the device is
used that way the user will not be receiving the same “professional strength” of blue
light that TRIA’s advertising repeatedly touts.
111. For example, the ClearLight™ Therapy System (CureLight Ltd.) is a
professional light source intended for treating dermatological disorders such as acne
by emitting “visible light in the violet-blue range with irradiance ranging between
50-200 mW/cm2.” See http://curelight.com/_Articles/Article.asp?ArticleID=
63&CategoryID=83 (last visited 12/14/10). At the recommended treatment time of
15 minutes (900 seconds), the ClearLight Therapy System delivers to the entire face
a dose of 45 Joules at the minimum 50 mW/cm2 setting and a dose of 180 Joules at
the maximum 200 mW/cm2 setting. Based on measurements made by Radiancy, the
TRIA Acne BlueLight has an irradiance (power density) of approximately 221
mW/cm2. At the recommended treatment time of 5 minutes (300 seconds), the
TRIA Acne BlueLight delivers 66.3 Joules, which is at the low end of the
professional dose range and is achievable only if the user confines the light to the
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recommended 3.3 X 3.3 cm treatment area for the entire 5-minute treatment time. If
the user applies the TRIA BlueLight in a “painting” fashion over the whole face (as
demonstrated in the Infomercial), the device will not deliver anything close to a
professional dose.
Claims that TRIA Blue Light Has 8 to 10 Times More Blue Light
Than Other At-Home Devices
112. TRIA has made various claims on its website that its Blue Light has 8
to 10 times more blue light than competing blue light devices, such as:
“8-10 times more blue light than other at-home blue light devices”
(found at: http://www.triabeauty.com/info/what-is-tria-blue-light-
therapy.htm (last visited 12/9/2010)).
“…TRIA Beauty developed a technology that is 10 times more
powerful than other OTC blue light devices…” (found at:
http://www.triabeauty.com/medias/sys_master/8799244320798.pdf
(last visited 12/9/2010)).
“…TRIA Beauty developed a technology that delivers up to 10
times more blue light than other OTC blue light devices…” (found
at: http://www.triabeauty.com/medias/sys_master/8799244451870.
pdf (last visited 12/9/10)).
“The TRIA Skin Clarifying System offers up to 10x more blue light
than other at-home devices.” (found at: http://www.trytriablue.com/
faqs.aspx (last visited 12/10/10)).
113. In the recently aired QVC commercial for TRIA Acne discussed above,
Dr. Eric Bernstein makes similar quantified blue light claims, saying, “This is eight
to ten times stronger than any other home light on the market,” and “It’s a real [sic]
eight to ten times more powerful than any blue light out there.”
114. However, upon information and belief, TRIA’s quantified blue light
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claims are false and/or misleading.
115. Radiancy purchased the TRIA Acne product (which purchase
benefitted TRIA), and performed testing on the product in order to investigate the
allegations made in TRIA’s advertising. Radiancy’s testing showed that (as stated
above), the power density of the TRIA Acne Blue Light as approximately 221
mW/cm2. However, the Omnilux clear-UTM (from Photo Therapeutics Inc,
Carlsbad, CA), which, like the TRIA Blue Light, is also available for at home use in
the treatment of acne, reportedly emits 415 nm blue light at a power density of 40
mW/cm2 and 633 nm red light at 70 mW/cm2. See http://findarticles.com/
p/articles/mi_m0PDG/is_4_7/ai_n25436953/?tag=content;col1 (last visited
12/13/10).
116. At 221 mW/cm2, the power density of the TRIA Bluelight is not 8-10
times the power density of the Omnilux blue light (40 mW/cm2). Furthermore, as
stated above, at the recommended treatment time of 5 minutes per day, the TRIA
BlueLight delivers a dose of 66.3 Joules. The Omnilux blue light treatment is
recommended for 20 minutes (1200 seconds) a day, which provides a dose of 48
Joules. At 66.3 Joules, the TRIA BlueLight does not deliver 8-10 times more light
than the Omnilux (at 48 Joules).
Claims That TRIA Acne Provides A Permanent Cure To Acne
117. The advertising for TRIA Acne also conveys the false and misleading
message that use of the product can essentially cure acne. For instance, on TRIA’s
websites, it claims:
“The TRIA Skin Clarifying System makes it simple to break the
cycle of breakouts – for good.” (Found at: http://www.trytriablue.
com/howitworks.aspx (last visited 12/10/10)).
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“The Clarifying Blue Light stopped acne in its tracks—and reversed
it…” – Jackie G. (found at: http://www.trytriablue.com/
testimonials.aspx (last visited 12/10/10)).
“You deserve clear, beautiful skin and now you can break the
endless cycle of breakouts.” (found at: http://www.triabeauty.com/
info/what-is-tria-blue-light-therapy.htm (last visited 12/10/10)).
“With continued use of the Skin Clarifying System, existing
breakouts may be eliminated and you’ll experience less future
breakouts.” (found at: http://www.triabeauty.com/info/tria-blue-
light-how-it-works.htm (last visited 12/10/10)).
118. TRIA also conveys the false and misleading message that TRIA Acne
provides a long-term or permanent cure for acne through its Acne Infomercial. For
instance, early in the Infomercial, Dr. Eric Bernstein, one of TRIA’s equity holders
says of the TRIA Blue Light, “There is now a device that you can use at home to
battle acne long term and hopefully push it into remission so it doesn’t come back.”
119. The Acne Infomercial also claims, “Imagine – no more breakouts, no
more red bumps at the wrong time, just clear, calm, healthy skin every day.”
Infomercial host, Ereka Vetrini, further conveys the message that the product can
cure acne, claiming that “today we’re going to shine a light on a way to treat acne
that breaks the breakout cycle.”
120. Similarly, in the recently aired QVC commercial for TRIA Acne, Dr.
Eric Bernstein proclaims that the blue light is “not like devices where you’re
treating the pimple when it comes, this prevents it from coming. This clears your
skin.”
121. However, any such claims that TRIA Acne can cure acne or “break the
breakout cycle” are false and misleading because, among other reasons (and as
TRIA Acne’s own Instructions For Use admit), the TRIA Blue Light is not effective
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on comedonal, nodular or cystic acne – a fact which neither the Acne Infomercial
nor TRIA’s websites adequately disclose.
122. Moreover, TRIA’s advertising claims that its ability to “break the
breakout cycle” is tied to the fact that TRIA Blue Light purportedly kills p. acnes
bacteria. However, studies have shown that p. acnes is not the only cause of acne
breakouts.
123. Even if an individual was suffering from acne solely caused by p. acnes
bacteria, TRIA’s claims that it can cure, or “break the breakout cycle” are still false
and misleading, because blue light has not been proven to be 100% effective at
killing all p. acnes bacteria.
Claims That TRIA Acne Is “FDA-Cleared”
124. TRIA’s advertising also falsely communicates the message that TRIA
Acne has been cleared by the FDA as a combined treatment for acne.
125. For instance, the TRIA Acne infomercial states, “Introducing the Tria
Skin Clarifying System, the only FDA cleared at home acne treatment,” while text
appears on-screen stating “FDA cleared SAFE & EFFECTIVE.”
126. Such a statement is false because, upon information and belief, TRIA
has only received FDA clearance for the TRIA Blue Light, and has not received
FDA clearance for the TRIA Acne system, as a combination treatment for acne.
TRIA’s Use of Radiancy’s “no!no!” Marks
127. In an effort to divert customers looking to purchase Radiancy’s no!no!
Hair and/or no!no! Skin products, TRIA has purchased, and uses, the terms “no!no!
hair removal”, “nono hair removal,” and other phrases incorporating Radiancy’s
no!no! mark, or confusingly similar marks, as keywords on internet search engines,
including but not limited to, Yahoo!, Google, and Bing.
128. TRIA’s intentional use of Radiancy’s marks as keywords on search
engines have caused and will continue to cause consumers searching for Radiancy’s
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products to be confused and misled into clicking on a link to TRIA’s website, where
it sells competing products.
Count I [Against TRIA]
False Advertising Under Lanham Act § 43(a)
[15 U.S.C. § 1125(a)]
129. Radiancy incorporates by reference and re-alleges the allegations of
paragraphs 1 through 128.
130. TRIA’s false and misleading advertisements violate Section § 43(a) of
the Lanham Act, 15 U.S.C. § 1125(a).
131. TRIA has published its false and misleading statements of fact
regarding TRIA Hair and TRIA Acne on its product labeling, on the internet,
through social media, and in nationally aired Infomercials and television shows, and
thus caused them to enter interstate commerce.
132. TRIA’s false and misleading statements are material for at least the
reason that they have influenced, and are likely to continue to influence, consumers’
purchasing decisions.
133. TRIA’s advertising claims have actually deceived or have a tendency to
deceive a substantial number of consumers in the relevant home beauty product
markets, and to influence those consumers’ purchasing decisions.
134. TRIA’s false and misleading advertising has caused and/or is likely to
cause injury to the general public, and to injure and cause Radiancy damages in an
amount to be proven at trial. Such damages include, among other things, lost sales,
harm to Radiancy’s business reputation and goodwill, lost profits and harm to the
value and goodwill associated with Radiancy’s products in general, and its no!no!
Hair and no!no! Skin products in particular.
135. Upon information and belief, TRIA’s wrongful actions will continue if
not enjoined, and will cause irreparable harm to the general public, and irreparable
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injury to Radiancy’s business, goodwill, and reputation, for which Radiancy has no
adequate remedy at law.
136. TRIA knew, or by exercise of reasonable care should have known, that
the above-described advertising claims were false and/or misleading, and likely to
deceive the public. Accordingly, the actions of TRIA were willful, and this is an
exceptional case within the meaning of 15 U.S.C. § 1117.
Count II [Against TRIA and Ms. Kardashian]
False Advertising Under California Law
[Cal. Bus. & Prof. Code § 17500, et seq.]
137. Radiancy incorporates by reference and re-alleges the allegations of
paragraphs 1 through 136.
138. TRIA’s and Ms. Kardashian’s false and misleading advertising, as
alleged herein, are in violation of Section § 17500, et seq. of the California Business
& Professions Code, because it is, by its nature, unfair, deceptive, untrue, or
misleading advertising within the meaning of the statute.
139. TRIA and Ms. Kardashian knew, or by exercise of reasonable care
should have known, that the above-described advertising claims are false and/or
misleading, and likely to deceive the public, and that they have caused, and will
continue to cause significant injury to Radiancy’s business.
140. As a result of TRIA’s and Ms. Kardashian’s wrongful actions, and
consumers’ reliance thereon, Radiancy has suffered an injury in fact and lost money
or property, including but not limited to injury to Radiancy’s goodwill and
reputation, increased marketing expenses, money spent on investigating TRIA’s and
Ms. Kardashian’s allegedly false advertising statements, lost sales, and lost profits
from sales wrongfully diverted to TRIA.
141. Upon information and belief, TRIA’s and Ms. Kardashian’s wrongful
actions will continue if not enjoined, and will cause irreparable harm to the general
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public, and irreparable injury to Radiancy’s business, goodwill, and reputation, for
which Radiancy has no adequate remedy at law.
Count III [Against TRIA and Ms. Kardashian]
Unfair Competition Under California Law
[Cal. Bus. & Prof. Code § 17200, et seq.]
142. Radiancy incorporates by reference and re-alleges the allegations of
paragraphs 1 through 141.
143. TRIA’s and Ms. Kardashian’s acts and practices, as alleged herein,
violate the California Business & Professions Code § 17200, et. seq. (“UCL”). By
engaging in the above-described acts and practices, including the actions and
omissions herein alleged, TRIA has committed one or more acts of unfair
competition within the meaning of Section § 17200, et seq. of the California
Business & Professions Code.
144. TRIA’s and Ms. Kardashian’s acts and practices constitute unlawful,
fraudulent and/or unfair business acts and practices within the meaning of the UCL.
145. TRIA’s and Ms. Kardashian’s acts and practices are “unlawful,” within
the meaning of the UCL because they, inter alia, violate Business & Professions
Code § 17500 as set forth above in Radiancy’s Second Cause of Action. TRIA’s
acts and practices additionally violate Sections 32 and 43(a) of the Lanham Act, as
set forth in Radiancy’s First and Fourth Causes of Action.
146. These acts and practices are also unlawful because TRIA’s statements
and the statements of TRIA’s paid spokesperson, Ms. Kardashian, violate the FTC
Act and/or the related FTC Guidelines Concerning the Use of Endorsements and
Testimonials in Advertising.
147. These aforementioned acts are “fraudulent” within the meaning of the
UCL because they are likely to deceive members of the public.
148. These acts and practices are “unfair,” within the meaning of the UCL,
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because they are immoral, unethical, oppressive, unscrupulous, and significantly
threaten or harm competition. The harm to competition and to consumers from
TRIA’s acts and practices outweigh any utility of the acts and practices.
149. TRIA and Ms. Kardashian knew, or by exercise of reasonable care
should have known, that the above-described advertising claims are false and/or
misleading, and likely to deceive the public, and that they have caused, and will
continue to cause significant injury to Radiancy’s business.
150. As a result of TRIA’s and Ms. Kardashian’s wrongful actions, and
consumers’ reliance thereon, Radiancy has suffered an injury in fact and lost money
or property, including but not limited to injury to Radiancy’s goodwill and
reputation, increased marketing expenses, money spent on investigating TRIA’s and
Ms. Kardashian’s allegedly false advertising, lost sales, and lost profits from sales
wrongfully diverted to TRIA.
151. Upon information and belief, TRIA’s and Ms. Kardashian’s wrongful
actions will continue if not enjoined, and will cause irreparable harm to the general
public, and irreparable injury to Radiancy’s business, goodwill, and reputation, for
which Radiancy has no adequate remedy at law.
Count IV [Against TRIA]
Trademark Infringement Under Lanham Act § 32
[15 U.S.C. § 1114]
152. Radiancy incorporates by reference and re-alleges the allegations of
paragraphs 1 through 151.
153. TRIA’s use of Radiancy’s marks is in violation of Section 32 of the
Lanham Act, 15 U.S.C. § 1114.
154. Radiancy’s no!no! mark is a valuable registered trademark, and is in
active use in commerce in the United States (and elsewhere) in connection with,
among other things OTC consumer products for personal use in hair removal, and in
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the treatment of acne and other dermatological conditions.
155. TRIA has used the registered no!no! mark in commerce in connection
with the sale, offering for sale, advertising, marketing or distribution of competitive
goods in such a manner as is likely to cause consumer confusion, mistake or
deception in the relevant marketplaces.
156. TRIA used the no!no! mark without Radiancy’s consent.
157. As a result of TRIA’s infringing use of Radiancy’s mark, TRIA has
caused damage to Radiancy in an amount to be determined at trial. Upon
information and belief, TRIA’s wrongful actions will continue if not enjoined.
Count V [Against TRIA]
Common Law Unfair Competition
158. Radiancy incorporates by reference and re-alleges the allegations of
paragraphs 1 through 157.
159. TRIA’s use of Radiancy’s no!no! marks as alleged herein constitutes
unfair competition under California common law.
160. Radiancy has invested substantial time, money and skill in developing
the no!no! marks, and TRIA has used and, upon information and belief, is still using
said marks without Radiancy’s consent, and without compensating Radiancy for
their use.
161. As a result of TRIA’s wrongful use of Radiancy’s marks, Radiancy has
suffered injury in an amount to be determined at trial.
Prayer For Relief
WHEREFORE, Radiancy prays for judgment:
A. Preliminarily and/or permanently enjoining TRIA, its officers, agents,
servants and employees, and Ms. Kardashian, and all persons in active concert
and/or participation with them, from further dissemination of the following:
1. Any express or implied statements that use of TRIA Hair results
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in “permanent hair removal,” as well as all substantively similar statements;
2. Any express or implied claims that consumers who use TRIA
Hair will never need to shave, wax or use any other form of hair removal again;
3. Any express or implied statements that the FDA has cleared or
approved TRIA Hair for permanent hair removal;
4. Any express or implied statement that TRIA Hair is “safe and
effective” for all consumers and for all body parts;
5. Any express or implied statement that TRIA Hair is painless or
pain-free
6. Any express or implied statement that TRIA Hair is equivalent to
professional hair removal treatment;
7. Any express or implied statement that TRIA Hair is the “only” or
“first and only” OTC laser hair removal product;
8. Any express or implied statement that TRIA Acne is superior to
all other available acne treatments;
9. Any express or implied statement that TRIA Acne is equivalent
to professional acne treatments and/or that TRIA Blue Light provides professional
strength levels of blue light;
10. Any express or implied statement that TRIA Acne provides eight
to ten times more blue light than other at-home blue light products;
11. Any express or implied statement that TRIA Acne provides a
long-term or permanent cure for acne;
12. Any other express or implied statements concerning the nature,
characteristics and qualities of the TRIA Hair that constitute materially false and
misleading advertising or unfair competition;
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B. Requiring TRIA to prominently disclose, in conjunction with any claim
that TRIA Hair provides a permanent reduction in hair regrowth, that “permanent”
is defined only as a reduction in the number of hairs re-growing following a
treatment regime that is stable over a time greater than the duration of the complete
growth cycle of the hair follicles, which may vary from four to twelve months,
depending on where the treated hair is located on the body.
C. Requiring TRIA to prominently disclose, in conjunction with any claim
that TRIA Hair is “safe and effective” that TRIA Hair is not safe for use on medium
or dark skin tones, not safe or recommended for use on all body parts, and not
effective on red, grey, or blond hair.
D. Requiring TRIA to disseminate among consumers corrective
advertising to dispel the impact of the false and misleading claims, and similar
claims, complained of herein;
E. Requiring TRIA to recall and destroy all tangible copies of the
advertisements that make the false and misleading claims, and similar claims,
complained of herein;
F. Preliminarily and/or permanently enjoining Ms. Kardashian from
advertising the TRIA Hair.
G. Preliminarily and/or permanently enjoining TRIA, its officers, agents,
servants and employees, and all persons in active concert and/or participation with
them, from using any registered or unregistered Radiancy trademark in commerce in
connection with the sale, offering for sale, distribution, or advertising of TRIA’s
goods in connection with which such use is likely to cause confusion, mistake, or
consumer deception, including without limitation, the use of such marks as an
internet keyword search, metatag, or domain name;
H. Directing that TRIA and Ms. Kardashian account to Radiancy for all
gains, profits, and advantages derived from the wrongful acts herein;
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I. Directing that TRIA pay Radiancy such damages as Radiancy has
sustained as a consequence of TRIA’s wrongful acts complained of in the First,
Fourth and Fifth Causes of Action, the precise amount of which is to be determined
at trial, and that the actual amount of damages under the First and Fourth causes of
action be trebled, pursuant to 15 U.S.C. § 1117;
J. Directing that all damages awarded be otherwise multiplied or
enhanced as authorized by law;
K. Directing that TRIA pay Radiancy the costs of this action and its
reasonable attorneys’ fees herein; and
L. Granting Radiancy such other and further relief as the Court may deem
just and proper.
Jury Demand
Radiancy demands a jury in this action for all issues so triable.
DATED: August 3, 2011
Brendan J. O’Rourke Kristin H. Neuman Victoria L. Loughery Robert H. Horn
PROSKAUER ROSE LLP
By: /s/ Robert H. Horn
Robert H. Horn Attorneys for Defendant, Counterclaim-
Plaintiff Radiancy, Inc.
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