Bio-Tech Pharmacal Announces That Judge Orders Mom & Pop "Surge" Makers to Accept Coca-Cola Offer or Else; Denied Their Day in Court -- Owners Say They Were Coerced Into Settlement.LITTLE ROCK, Ark.--(BUSINESS WIRE)--Aug. 26, 1998--A Federal Judge has ruled in favor of the Coca-Cola Company and against a small pharmaceutical/nutriceutical manufacturer, Bio-Tech Pharmacal, Inc., over the settlement of a trademark infringement Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). dispute regarding Coke's high profile beverage, "Surge," according to according to prep. 1. As stated or indicated by; on the authority of: according to historians. 2. In keeping with: according to instructions. 3. attorneys for Bio-Tech. Federal District Court Judge G. Thomas Eisele ordered the owners of Bio-Tech Pharmacal, Inc., who registered their trademark in 1994, two years prior to Coke's filing, to either accept Coke's settlement offer or be fined $1,000 per day. In court documents, Bio-Tech Pharmacal owners, Dale and Marti Benedict, recount how in 1996 they received threatening letters (Law) letters containing threats, especially those designed to extort money, or to obtain other property, by menaces; blackmailing letters. See also: Threatening and phonecalls from an attorney on behalf of an "undisclosed client" ordering them to stop using the name "Surge," or face serious legal action. It was later revealed that the "undisclosed client" was Coca-Cola. Ms. Tona DeMers, the attorney who represents Bio-Tech, said, "Coke is of the opinion that they can just take what they want by trampling others and they won't be called to task for their actions. They simply encircled en·cir·cle tr.v. en·cir·cled, en·cir·cling, en·cir·cles 1. To form a circle around; surround. See Synonyms at surround. 2. To move or go around completely; make a circuit of. Bio-Tech by buying up all the marks around them and then coming in for the kill. It didn't matter to Coke that their actions were in derogation The partial repeal of a law, usually by a subsequent act that in some way diminishes its Original Intent or scope. Derogation is distinguishable from abrogation, which is the total Annulment of a law. DEROGATION, civil law. of the law. They thumbed their nose at the law and at Bio-Tech's rights and proceeded like Sherman through Atlanta." "Coke's trademark application for the name Surge contained at least one false statement, Ms. DeMers said. "And that was that they knew of no one else entitled en·ti·tle tr.v. en·ti·tled, en·ti·tling, en·ti·tles 1. To give a name or title to. 2. To furnish with a right or claim to something: to use the name Surge in interstate commerce interstate commerce In the U.S., any commercial transaction or traffic that crosses state boundaries or that involves more than one state. Government regulation of interstate commerce is founded on the commerce clause of the Constitution (Article I, section 8), which . At the same time that Coke made this claim, they had retained a Little Rock law firm to contact Bio-Tech on behalf of an 'undisclosed client' and assert that Bio-Tech had infringed on their Energy Surge mark with the use of Surge." "Although Coca-Cola claimed in their application that they owned the Energy Surge mark, they didn't register ownership of the mark for several months," Ms. DeMers said. According to Ms. DeMers, "If the U.S. Patent and Trademark Office becomes aware of false statements in Coke's trademark application for Surge, they could be subject to fines, imprisonment Imprisonment See also Isolation. Alcatraz Island former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218] Altmark, the German prison ship in World War II. [Br. Hist. and cancellation of any Surge trademark rights obtained by them." While the Benedicts have refused the settlement check delivered by Coca-Cola counsel, Bruce Baber, Judge Eisele's order forced them to endorse it. Judge Eisele also ordered disbursement DISBURSEMENT. Literally, to take money out of a purse. Figuratively, to pay out money; to expend money; and sometimes it signifies to advance money. 2. of the funds to the Rose Law Firm of Little Rock and the Dilling Law Firm of Chicago, attorneys who had previously represented Bio-Tech Pharmacal but who had withdrawn because Bio-Tech Pharmacal refused to settle. The balance of the money remains in the Court's registry, since the Benedicts refused to accept it pending an appeal to the Eighth Circuit Court of Appeals of the settlement and the ruling by Judge Eisele. "It's not right," said the Benedicts, "that a large corporation should be allowed to take advantage of a small company like ours just because of its power. We took an ethical stand on principle and we plan to hold our ground," they concluded.
CONTACT: Jaffe & Co. Inc.
Stephen Jaffe, 310/275-7327
or
Source: Bio-Tech Pharmacal, Inc.
Tona DeMers, Esq., 501/771-1907
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