By Mike Donoghue, Standard Correspondent
BURLINGTON — “Love Your Brain,” which is the basis for a foundation established by a well-known Windsor County professional snowboarder, is at the center of a trademark violation lawsuit filed against Epilepsy Foundation of Greater Los Angles.
Kevin Pearce, now 28, was critically injured New Year’s Eve 2009 when he struck his head during a botched training run down the halfpipe in the hopes for a seat on the 2010 U.S. Olympic team.
The lawsuit filed in U.S. District Court in Burlington says Epilepsy Foundation of Greater Los Angeles has been improperly using the phrase that Pearce coined in 2012 as he spoke throughout the country. Pearce, the award-winning snowboarder, says he helped formally establish “Love Your Brain Foundation Inc.”
The defendant, EF of Greater Los Angeles, has used “Love Your Brain Now” in various places and the lawsuit included displays from the side of a bus and from a website as early as Dec. 9, 2012.
The question appears simple: Is that an infringement?
Love Your Brain Foundation wants a federal court jury to answer the question if a settlement can’t be reached.
Pearce began using the phrase “Love Your Brain” at least as early as Oct. 23, 2012 during an event in San Francisco and eventually created a foundation by the same name in 2013, the lawsuit notes. He used it in other programs and speaking engagements in San Francisco, Los Angeles and San Diego. The groups include Wounded Warriors, the National Neurotrauma Conference, Hoag Memorial Hospital in Newport Beach, Calif and the Gene Upshaw Golf Benefit, the lawsuit said.
The Love Your Brain Foundation filed the suit to stop the trademark infringement, Norwich attorney Geoffrey Vitt of Vitt & Associates told the Vermont Standard this week. He said it is essential for any business or foundation when they see their name or trademark being used by somebody else to step in aggressively to stop it.
He said Love Your Brain Foundation is well known nationwide as Pearce’s effort following the lifechanging crash. Vitt, the plaintiff’s lawyer, wrote in the lawsuit that he alerted EF of Greater Los Angeles on July 28, 2015 giving it a heads up that Pearce’s foundation owned and had exclusive rights to “Love Your Brain.” EF of Greater Los Angeles ignored the cease and desist demand, the lawsuit said.
Vitt said efforts were continuously made by LYB until May 3 of this year “in a good faith effort to negotiate a mutually agreeable resolution to Epilepsy Foundation’s infringing use” in order to resolve the issue. With no agreement by EF of Greater Los Angeles, the lawsuit was filed.
Besides trademark infringement, the 15-page lawsuit includes a second claim of unfair competition.
The lawsuit asks that the Epilepsy Foundation deliver to Pearce’s foundation for destruction all labels, signs, prints, advertising materials and other items using the phrase. The lawsuit also asks, after an accounting, for all profits resulting from the unlawful uses. The lawsuit requests punitive and/or statutory damages with interest.
EF of Greater Los Angeles has not filed a written response to the lawsuit in Burlington. Burlington lawyer Michael Wasco, who is part of the patents and intellectual property division of Paul, Frank and Collins, told the Vermont Standard on Tuesday afternoon that his firm had just been retained. Wasco said it was too early to comment on the case. He said Vitt has agreed to provide an extension for the legal written response, which was due earlier this month at the Burlington courthouse.
A Google search on Tuesday showed EF of Greater Los Angeles was still using the phrase.
LYB was founded by Kevin Pearce, his brother Adam and his mother Pia Pearce, according to the lawsuit. Pearce is the son of internationally known glassmaker Simon Pearce.
The accident that sidelined Kevin Pearce was during training at Park City Utah on Dec. 31, 2009. It was June 2010 before he was able to make it back to Vermont. He did resume recreational snowboarding. A documentary film, “The Crash Reel” outlines Pearce’s efforts to get to the Olympics, the 2009 injury, his hospitalization, rehabilitation and recovery.
“All of the intellectual property rights of LYB, including its trademark rights (such as Love Your Brain), are owned by the LYB, which licenses the use of those intellectual property rights to the manufacturers of the LYB products and to service providers that participate in or host LYB yoga tour sessions, the LYB retreats, and distributors of LYB educational materials,” the lawsuit states.
Pearce’s foundation displays a brain in place of the letter “O” in the word “Love” in the trademark for Love Your Brain Foundation.
LYB is a nonprofit that aims to improve the quality of life in people impacted by traumatic brain injury through building programs and by promoting public awareness of brain injury and brain health, the lawsuit states.
This article first appeared in the September 15, 2016 edition of the Vermont Standard.