COVID-19 Test Maker Hits 'Nefarious' Co. With TM Suit

By Tiffany Hu
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Law360 (April 9, 2020, 2:34 PM EDT) -- A COVID-19 test maker has lodged a trademark suit accusing a "nefarious" company of falsely marketing its coronavirus testing kits to consumers, telling a Florida federal court that the kits are not approved for at-home use and were never sold to the company.

In a lawsuit filed Wednesday, CoronaCide LLC claimed that Wellness Matrix Group Inc. agent George Todt reached out in February about purchasing its testing kits, but that it expressly rejected the offer after discovering Todt had been "repeatedly sued for fraud."

Undeterred, CoronaCide says, WM Group has been falsely offering CoronaCide's COVID-19 testing kits for use "in the home or at the bedside," swiping entire texts and images from the test maker's materials to advertise the kits on its website.

"News outlets have published reports regarding defendants' nefarious activities," CoronaCide said, claiming to have no relationship to WM Group, and that multiple demands to stop using the test maker's trademarks on its website have gone unheeded.

The testing kits in question "use a blood sample to detect the presence of antibodies relating to the COVID-19 virus," according to the complaint.

CoronaCide said the U.S. Food and Drug Administration has only authorized it to distribute the kits to licensed health care practitioners in the U.S. for diagnostic purposes, as the test maker waits for the FDA's final decision on its emergency use application.

CoronaCide said it sells testing kits to medical distribution companies, hospitals, and local and state governments "who will assure that they are used at the point of care as required" by the FDA, and it does not sell the kits for at-home use.

CoronaCide is now seeking a judgment requiring WM Group to destroy all marketing materials that "display a product which is identical, or confusingly similar with, CoronaCide's test kits," as well as an injunction against the company, and other damages and costs.

The lawsuit comes as the U.S. Securities Exchange Commission on Tuesday temporarily suspended WM Group and two other companies for lightly traded over-the-counter stocks that dubiously surged in recent weeks. After months of trading below 5 cents per share for months, the company has traded around the 10-cent mark since March 23.

Since March 19, the company has made unverified statements through affiliated websites and a consultant about selling at-home COVID-19 testing kits that had received approval from the FDA, the SEC said.

Richard E. Fee of Fee & Jeffries PA, an attorney for CoronaCide, told Law360 in an email Thursday that "the deceptive and fraudulent actions of Wellness Matrix Group and George Todt in this time of worldwide pandemic are outrageous and unconscionable."

"CoronaCide has unique and proven COVID-19 test kit technology that can contribute markedly to flattening the pandemic's curve and getting people back to work and helping to save the economy," Fee said. "CoronaCide will vigorously prosecute its lawsuit against Wellness Matrix Group Inc. and George Todt and will take action against all others who seek to mislead the public regarding CoronaCide and its COVID-19 test kits." 

An email to WM Group's website bounced back Thursday.

CoronaCide is represented by Richard E. Fee and Kathleen M. Wade of Fee & Jeffries PA and Anton Hopen of Smith & Hopen PA.

Counsel information for the defendants was not immediately available Thursday.

The case is CoronaCide LLC v. Wellness Matrix Group et al., case number 8:20-cv-00816, in the U.S. District Court for the Middle District of Florida.

--Additional reporting by Dean Seal. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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