SOURCE: Zarco Einhorn Salkowski & Brito, P.A.

May 26, 2015 16:25 ET

Battery on the Go Inc. Files Suit Against Walt Disney Co. Seeking $50 Million in Damages

Portable Battery Charger Maker Alleges Trademark Infringement

MIAMI, FL--(Marketwired - May 26, 2015) - Battery on the Go Inc., the Miami-based maker of the popular PowerBar® portable battery charger, filed a suit against Walt Disney Co. today in federal court seeking $50 million in damages for illegally using its product name on inferior battery chargers Disney sells in its stores, theme parks and online.

The eight-count lawsuit filed by Battery on the Go Inc., in United States District Court for the Southern District of Florida, claims Disney is damaging the PowerBar® brand and cannibalizing the plaintiff's sales on a global scale. The plaintiff seeks monetary damages and an immediate injunction.

"Apparently Mickey's team thinks that just because they're a huge multinational corporation that we're going to let them get away with this," said Robert Zarco, founding partner of Zarco, Einhorn, Salkowski & Brito, P.A., the Miami franchise and trademark law firm representing Battery on the Go Inc. "Not to mix children's tales, but we're not going to let them blow our house down."

The lawsuit claims The Walt Disney Company is committing trademark infringement, trademark dilution, unfair competition, and deceptive and unfair trade practices under federal law and Florida statutes.

Since 2012, Battery on the Go has sold powered devices and chargers under its PowerBar®, PowerJam, PowerMax and PowerBank brands. This includes a full line of portable and high capacity battery chargers and cables used to recharge smartphones iPad and other small electronic devices. The company also sells Bluetooth speakers, hats, gloves and headbands; jump starters; key chain chargers; iPhone and multi-use USB cables and adapters; USB car chargers; wall chargers; powered cellphone cases and make-up cases; and clock radios.

Battery on the Go's date of first use of the PowerBar® mark, according to documents filed with the U.S. Patent and Trademark Office, was May 25, 2012. Battery on the Go's registration for the PowerBar® mark was issued on February 11, 2014.

Aggressive marketing has established PowerBar® as a leading product and lifestyle brand in the U.S. and globally. It has aired on cable, satellite and broadcast television network, QVC, which broadcast Battery on the Go's PowerBar® products to 235 million households in the U.S. and abroad.

In 2013, PowerBar® hit retail store shelves. Today, it is carried in more than 2,700 stores nationwide, ranging from RadioShack, Techshowcase and InMotion stores in international airports nationwide, TigerDirect, Verizon stores, 7-Eleven, Dick's Sporting Goods, and almost 150 Independent College Bookstore Association locations.

The product is promoted on "daily deal" websites, like Beyond the Rack, CBS Deals, City Hits, Groupon, iPhone Life, LivingSocial, No More Rack, Plum District, Shop NBC, Stack Social, Troop Swap, Yugster, and Zulily. In 2014, Battery on the Go's websites, batteryonthego.com and xsorii.com, received 3.2 million unique visits and 4.8 million page views.

By early 2015, the product was available in Canada and Mexico, delivering a global distribution footprint of more than 35,000 retail locations in seven countries.

Meanwhile, according to Zarco, the Walt Disney Company since 2013 has been sapping this goodwill by committing unfair competition and deceptive and unfair trade practices against Battery on the Go and its exclusive right to the mark. The defendant has repeatedly used the names "Disney Power Bar" and "Disney Battery Power Bar -- Mickey Mouse" domestically and internationally to market and sell its battery charger.

Disney executives ignored a cease-and-desist letter served to the company on April 28, 2015. Not only does Disney continue to sell the products at retail and online, further confusing consumers, damaging Battery on the Go's reputation and hindering its sales, but its efforts give the "erroneous impression of an affiliation or sponsorship between Disney and Battery on the Go, and has impaired Battery on the Go's sales and promotional activities," the complaint states. The two companies have no such relationship, Zarco said.

"Disney had almost $49 billion in global revenues in 2014. You can't tell me they didn't know someone else owned the PowerBar® mark," he said. "I believe they knew, but didn't care. The result is the same. They're causing serious damage to the PowerBar® brand. As we wrote in the complaint, 'Disney's conduct as alleged herein constitutes a willful and knowing attempt to trade on the goodwill which Battery on the Go owns and has developed in the PowerBar®.'"

ABOUT ZARCO EINHORN SALKOWSKI & BRITO, P.A.

Robert Zarco, Esq. and Alejandro Brito, Esq. of Zarco, Einhorn Salkowski & Brito, P.A. represent the Plaintiff and is an internationally recognized Commercial trial law firm providing high-end legal services in complex commercial legal matters in the areas of franchise, trademark automotive and truck dealership, hospitality and licensing and distributorship law with an emphasis on litigation in the federal and state trial and appellate courts, as well as arbitration and mediation throughout the United States and internationally. For more information, visit www.zarcolaw.com.

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