Case 1:16-cv-00216-PAE Document 1 Filed 01/12/16 Page 1 of 16

David H. Bernstein (dhbernstein@debevoise.com)

DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, New York 10022
(212) 909-6696
Attorneys for Plaintiff Kids v Cancer
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KIDS V CANCER,
:
:
Plaintiff,
:
:
-against:
:
JOSEPH ZEVULONI and
:
SIMCHA LAYELADIM, INC.,
:
:
Defendants.
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16 Civ. ___________

COMPLAINT AND DEMAND FOR JURY TRIAL

Kids v Cancer (Kids v Cancer), by its attorneys Debevoise & Plimpton LLP, for
its complaint against Joseph Zevuloni (Zevuloni) and Simcha Layeladim, Inc.
(Simcha Layeladim, and together with Zevuloni, Defendants), alleges as follows:
INTRODUCTION
1.

This is an action for trademark infringement and related claims against

Defendants use of the trademark KIDS VS. CANCER, which infringes Kids v Cancers
federally-registered KIDS V CANCER trademark. Defendants use their mark in
connection with charitable fundraising services which supports financial aid, gifts, and
vacation packages for children diagnosed with cancer; Kids v Cancer similarly uses its
mark in connection with charitable fundraising services, which support research,

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education and other activities relating to pediatric cancer and pediatric rare diseases,
including public advocacy to promote awareness of pediatric cancer and pediatric rare
disease research. Defendants use of the nearly-identical KIDS VS. CANCER mark for
such closely-related services has already caused substantial confusion and, if not
enjoined, will continue to confuse donors, researchers and policy makers. Although Kids
v Cancer prefers to expend its resources fighting against pediatric cancer rather than
against other charities, it has no choice but to seek the relief requested herein given
Defendants intransigence and refusal to stop their infringing conduct despite more than
four months of settlement negotiations.
THE PARTIES
2.

Kids v Cancer is a 501(c)(3) nonprofit organization organized and existing

under the laws of the District of Columbia with its principal place of business at 3401
Newark Street, NW, Washington, DC 20016.
3.

On information and belief, Simcha Layeladim is a 501(c)(3) nonprofit

organization organized and existing under the laws of the State of Florida with its
principal place of business at 10140 NW 47th Street, Sunrise, Florida 33351 and with an
office in this District at 230 Park Avenue, 10th Floor, New York, New York 10169.
Simcha Layeladim (which means Joy to the Children in Hebrew) is also known as Kids
Vs. Cancer and MyWish4U.org.
4.

On information and belief, Zevuloni is an individual residing in the State

of Florida and is the Founder and a Director of Simcha Layeladim. On information and
belief, Zevuloni personally selected the KIDS VS. CANCER trademark and directs the

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use of that mark by Simcha Layeladim, including in charitable fundraising services in this
District.
JURISDICTION AND VENUE
5.

This Court has original jurisdiction over the subject matter of this action

pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and 1338 and has supplemental
jurisdiction pursuant to 28 U.S.C. 1367(a).
6.

This Court has personal jurisdiction over Defendants by virtue of their

tortious activities in and directed towards this District including their maintenance and
operation of an office within this District.
7.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because,

given Defendants use of the KIDS VS. CANCER mark in this District through their
office in this District, a substantial part of the events or omissions giving rise to the claim
occurred in this District, and because Defendants are subject to this Court's personal
jurisdiction with respect to this action.
KIDS V CANCERS MARK AND SERVICES
8.

Kids v Cancer is the nations foremost charitable organization dedicated to

raising funds and advocating for development of new drugs and therapies to treat
pediatric cancer.
9.

Kids v Cancer was born out of the tragedy of Jacob Fromans diagnosis in

February 2007 of medulloblastoma an aggressive form of brain cancer when he was

eight years old. At the time, Jacob and his family resided in New York. During the
ensuing two years, Jacobs parents Nancy Goodman and Michael Froman worked

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tirelessly to get the best possible medical care for Jacob. Jacob fought the disease with
courage and gumption, insisting that he would go back to school in New York despite his
illness and participate in activities with his friends. Though he bravely persevered
through numerous brain surgeries, several weeks of radiation therapy, and multiple
rounds of chemotherapy, Jacob passed away at the age of ten on January 16, 2009.
10.

In the midst of this devastating tragedy, Ms. Goodman decided to embark

on a new philanthropic endeavor to honor Jacobs memory. During Jacobs illness, Ms.
Goodman had contacted pediatric brain cancer researchers and caregivers at over thirtyfive different hospitals in more than a dozen countries. In the course of this search for the
best possible care for Jacob, Ms. Goodman met numerous scientists, researchers, and
pediatric oncologists who expressed frustration with the lack of new drugs being
developed with which to treat children with cancer, a lack of tissue samples with which to
study pediatric cancers and design new drugs, and a lack of access to funding which
would enable them to carry on meaningful research.
11.

With the hopes of remedying these systemic problems in the pediatric

cancer research community, Kids v Cancer was born. In the weeks following Jacobs
death in 2009, Ms. Goodman registered the domain name kidsvcancer.org and organized
the Kids v Cancer community trust fund to solicit donations in memory of her son.
Shortly thereafter, she incorporated Kids v Cancer as a 501(c)(3) organization. Since that
time, Kids v Cancer has grown into a widely recognized and highly successful
philanthropic organization.
12.

Kids v Cancer has used its mark in Florida, New York, and numerous

other states as early as 2009, including in connection with communications with residents

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of those states about its charitable and public advocacy efforts. Kids v Cancer also
received donations from residents of Florida, New York, and other states as early as
2009. Kids v Cancer applied to register its mark KIDS V CANCER with the United
States Patent and Trademark Office on September 18, 2012; its registrations were granted
on May 14, 2013 (Registration Numbers 4,334,483 and 4,334,485).
13.

During the past seven years, Kids v Cancer has achieved remarkable

successes. Its first major legislative victory came on July 9, 2012, when President
Obama signed the Creating Hope Act, 32 U.S.C. 360ff. That Act which had been
authored and championed by Kids v Cancer creates market incentives through a priority
voucher review program for the development of drugs to be used in the treatment of rare
pediatric diseases, including pediatric cancer. Kids v Cancer worked tirelessly to support
the passage of the Act, which was sponsored by Representatives Michael McCaul and
G.K. Butterfield and endorsed by such prominent organizations as the National
Association of Childrens Hospitals, the National Brain Tumor Society, and the National
Childrens Cancer Society (NCCS). In the wake of the passage of the Creating Hope
Act, Ms. Goodman and Kids v Cancer were featured on ABC News, CNBC, Associated
Press, Bloomberg, and in The Washington Post. Adding additional impetus to Kids v
Cancers mission, on August 31, 2010, President Obama issued a Presidential
Proclamation declaring September 2010 as National Childhood Cancer Awareness
Month. Since then, President Obama has renewed that declaration each September,
including for September 2015. See https://www.whitehouse.gov/the-pressoffice/2015/08/31/presidential-proclamation-national-childhood-cancer-awarenessmonth-2015.

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14.

The Creating Hope Act has already had a major impact on pediatric cancer

research. Under the auspices of the Act, many vouchers have already been sold for
hundreds of millions of dollars to help advance pediatric cancer research, including
Unituxin, the most exciting advance in neuroblastoma treatment in 40 years. United
Therapeutics, which earned the voucher for Unituxin, subsequently resold the voucher to
AbbVie for $350 million.
15.

Kids v Cancer is now actively working to promote the Advancing Hope

Act, which will permanently reauthorize the voucher program of the Creating Hope Act,
and also the Kids Innovative Drugs Initiative, which will help children with cancer gain
access to the most promising therapies. The Advancing Hope Act was introduced as
H.R. 1537 in March 2015. In the meantime, the Creating Hope Act was reauthorized in
July 2015.
16.

Kids v Cancer has also worked to help patients gain compassionate use

access to cancer treatments approved for adult use, has hosted workshops and published
commentaries on compassionate use for children with cancer, and has launched an
autopsy tissue donation program to support the development of new therapies for
pediatric cancer. In December 2015, hired a new director for its compassionate use
program.
17.

In October 2015, Kids v Cancer was honored with the Peter F. Drucker

Award for Nonprofit Innovation as the most innovative non-governmental organization in

the United States. In conferring this award, the Foundation noted the leverage Kids v

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Cancer achieves in generating hundreds of millions of dollars of pediatric cancer drug

development on a shoestring budget.
18.

In light of Kids v Cancers active fundraising and advocacy during the

past seven years, and its remarkable achievements and recognition in the pediatric
oncology and public policy communities, the KIDS V CANCER name has become a
valuable trademark. When funders, researchers, and policy makers hear the KIDS V
CANCER name, they know that it refers to Ms. Goodman and the organization she leads.
19.

Kids v Cancers federal trademark registrations are prima facie evidence

of the validity of the KIDS V CANCER trademark, of its ownership by Kids v Cancer,
and that the mark is distinctive. The KIDS V CANCER mark is also inherently
distinctive. Moreover, by virtue of Kids v Cancers past and continuing use of this mark
and the attendant publicity this use has generated, the KIDS V CANCER mark has
acquired substantial secondary meaning, particularly among charitable donors, public
policy advocates, and the cancer research industry. Kids v Cancer has built up extensive
goodwill in its mark and its funders as well as others in the medical and philanthropic
communities have come to recognize the mark as signifying Kids v Cancer and its
charitable and public advocacy services.
DEFENDANTS INFRINGEMENT OF THE KIDS V CANCER MARK
20.

On information and belief, Zevuloni founded Simcha Layeladim in 2010,

at least one year after Ms. Goodman began using the KIDS V CANCER mark and
domain name. On information and belief, by December 2010 Defendants had begun
using the Kids Vs. Cancer name in connection with their charitable fundraising

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services, such as organizing and participating in trips to FAO Schwartz in New York.
Kids Vs. Cancer is not, however, Defendants primary name; Defendants also operate
under the names Simcha Layeladim, MyWish4U.org, and Joy for the Children
Indeed, Defendants primary name appears to be Simcha Layeladim, as shown in the
images below taken from Defendants website.

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21.

Defendants, like Plaintiff Kids v Cancer, have been and continue to be

engaged in charitable efforts aimed at improving the lives of children with cancer. The
similarity between the KIDS V CANCER and KIDS VS. CANCER marks and the
services that the parties provide will inevitably cause confusion if Defendants infringing
acts are not enjoined.
LIKELIHOOD OF CONFUSION AND IRREPARABLE HARM
22.

Due to Defendants adoption of a near-identical name Kids Vs. Cancer

for its charitable efforts, there is a likelihood that donors, researchers, and policy makers
will mistakenly associate Defendants activities with Kids v Cancers efforts, or
otherwise conflate the two organizations. Indeed, such confusion has already occurred on
at least two occasions.
23.

In one recent case of actual confusion, a donor made a $25,000 donation

to Kids v Cancer when the money was intended for Defendants; upon learning of the
error, Kids v Cancer contacted the donor and followed his instructions to return the
donation.
24.

In a second recent case of actual confusion, a donor contacted Kids v

Cancer seeking a receipt for its donation, but the donation had been made to Simcha
Layeladim.
25.

There may indeed have been other instances of actual confusion that have

not been uncovered by Kids v Cancer.

26.

Defendants activities under this nearly identical trademark are causing

irreparable harm to Kids v Cancer and its KIDS V CANCER trademark. If Defendants

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are not enjoined from the continued infringement of the KIDS V CANCER mark, that
irreparable harm will be exacerbated, and the goodwill that Kids v Cancer has spent
considerable time, effort, and resources cultivating will be eroded.
COUNT ONE
Registered Trademark Infringement
Under Section 32 of the Lanham Act
27.

Kids v Cancer repeats and realleges each and every allegation in the

foregoing paragraphs as if fully set forth herein.

28.

As noted above, the KIDS V CANCER trademark is registered with the

United States Patent and Trademark Office.

29.

The federally-registered KIDS V CANCER trademark is valid, subsisting,

used in commerce, and inherently distinctive, and also has acquired substantial secondary
meaning by virtue of its extensive use in the charitable and medical communities. Kids v
Cancers use of the KIDS V CANCER trademark predates Defendants adoption and use
of the KIDS VS. CANCER trademark.
30.

Defendants use of the KIDS VS. CANCER mark has caused, and will

likely continue to cause, confusion with Kids v Cancers federally-registered trademark

among donors, researchers and policy makers. Individuals seeking to assist Kids v Cancer
likely will believe that Zevuloni and his organization, Simcha Layeladim, is sponsored
by, associated with, or otherwise affiliated with Kids v Cancer, or vice versa. Indeed, as
shown below, Simcha Layeladim expressly claims to also [be] known as Kids Vs.
Cancer.

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31.

Defendants use of this confusingly similar name is likely to cause

irreparable injury to the reputation of Kids v Cancer as well as to the goodwill developed
by Kids v Cancer for its charitable and public advocacy efforts. The extent of this harm
cannot be ascertained at this time, leaving Kids v Cancer no adequate remedy at law.
32.

Defendants use of the KIDS VS. CANCER mark constitutes infringement

of the federally-registered KIDS V CANCER trademark in violation of Section 32 of the

Lanham Act, 15 U.S.C. 1114.

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33.

By reason of the foregoing, Kids v Cancer is entitled to injunctive relief

against Defendants, restraining them from any further acts of infringement of Kids v
Cancers federally-registered trademark and, after trial, recovery of any damages (to the
extent calculable) proven to have been caused by reason of Defendants aforesaid acts.
COUNT TWO
Trademark Infringement
Under Section 43(a) of the Lanham Act5
34.

Kids v Cancer repeats and realleges each and every allegation in the

foregoing paragraphs as if fully set forth herein.

35.

The KIDS V CANCER trademark is used in commerce in connection with

Kids v Cancers charitable efforts to aid the research and development of treatments for
pediatric cancers and its public advocacy.
36.

The KIDS V CANCER mark is inherently distinctive and also has

acquired substantial secondary meaning by virtue of its extensive use in commerce.

37.

Defendants use of the KIDS VS. CANCER mark has caused, and will

likely continue to cause, confusion with Kids v Cancers federally-registered KIDS V

CANCER trademark among donors, researchers and policy makers. Individuals seeking
to assist Kids v Cancer likely will believe that Defendants are sponsored by, associated
with, or otherwise affiliated with Kids v Cancer, or vice versa.
38.

Defendants use of this confusingly similar name is likely to cause

irreparable injury to the reputation of Kids v Cancer as well as to the goodwill developed
by Kids v Cancer for its charitable efforts. The extent of this harm cannot be ascertained
at this time, leaving Kids v Cancer no adequate remedy at law.

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39.

Defendants use of the KIDS VS. CANCER mark constitutes infringement

of the KIDS V CANCER trademark in violation of Section 43(a) of the Lanham Act, 15
U.S.C. 1125(a).
40.

By reason of the foregoing, Kids v Cancer is entitled to injunctive relief

against Defendants, restraining them from any further acts of infringement of Kids v
Cancers trademark and, after trial, recovery of any damages (to the extent calculable)
proven to have been caused by reason of Defendants aforesaid acts.
COUNT THREE
Trademark Infringement Under New York and Florida Law
41.

Kids v Cancer repeats and realleges each and every allegation in the

foregoing paragraphs as if fully set forth herein.

42.

Defendants acts, as described above, constitute trademark infringement

under N.Y. Gen. Bus. Law 360-k and under Fla. Stat. 495.131.
COUNT FOUR
(Unfair Competition Under New York and Florida Law)
43.

Kids v Cancer repeats and realleges each and every allegation in the

foregoing paragraphs as if fully set forth herein.

44.

Defendants acts, as described above, constitute unfair competition in

violation of Kids v Cancers rights under the New York State common law, as preserved
by N.Y. Gen. Bus. Law 360-o, and under Florida State common law.

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PRAYER FOR RELIEF

WHEREFORE, Kids v Cancer respectfully prays:
A.

That Defendants and all those in active concert or participation

with them (including, but not limited to, their officers, directors, agents, servants,
employees, representatives, attorneys, subsidiaries, related companies, successors,
assigns, and contracting parties) be temporarily, preliminarily and then permanently
enjoined and restrained from:
i.

using, in connection with charitable efforts related to

children with cancer, the Kids Vs. Cancer name, any colorable imitation
of the KIDS V CANCER mark, or any other marks, names or slogans that
are confusingly similar to the KIDS V CANCER mark;
ii.

doing any other acts or things likely to cause confusion or

mistake in the mind of the public or to lead donors, contributors,

volunteers, researchers, policy makers or others to believe that
Defendants services come from or are associated with Kids v Cancer, or
are somehow sponsored or endorsed by or affiliated with Kids v Cancer;
iii.

doing any other acts or things likely to cause reverse

confusion or mistake in the mind of the public or to lead donors,

contributors, volunteers, researchers, policy makers or others to believe
that Kids v Cancers services come from or are associated with
Defendants, or are somehow sponsored or endorsed by or affiliated with
Defendants; and

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B.

That Defendants and all those in active concert or participation

with them (including, but not limited to, Defendants officers, directors, agents, servants,
employees, representatives, attorneys, subsidiaries, related companies, successors,
assigns, and contracting parties) take affirmative steps to dispel such false impressions
that heretofore have been created by their use of the KIDS VS. CANCER mark; and
C.

That Defendants account to Kids v Cancer for any damages

sustained by Kids v Cancer, to the extent calculable, arising from the foregoing acts of
trademark infringement and unfair competition pursuant to 15 U.S.C. 1117, N.Y. Gen.
Bus. Law 349(h) and Fla. Stat. 501.2105, 501.211; and
D.

That, in accordance with such accounting, Kids v Cancer be

awarded judgment for three times such damages, pursuant to 15 U.S.C. 1117 and N.Y.
Gen. Bus. Law 349(h), and $10,000 per infringement, pursuant to Fla. Stat. 501.2075;
and
E.

That Kids v Cancer have and recover its costs, including its

reasonable attorneys fees and disbursements in this action, pursuant to 15 U.S.C.

1117,N.Y. Gen. Bus. Law 349(h) and Fla. Stat. 501.2105, 501.211; and
F.

That Defendants deliver up for destruction all infringing materials

in its possession or control and all means of making the same in accordance with 15
U.S.C. 1118; and
G.

That Defendants file with the Court and serve on counsel for Kids

v Cancer within thirty (30) days after entry of any injunction issued by the Court in this
action, a sworn written statement pursuant to 15 U.S.C. 1116(a) setting forth in detail

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the manner and form in which Defendants have complied with any injunction which the
Court may enter in this action; and
H.

That Kids v Cancer have such other and further relief as the Court

may deem just and proper.

JURY TRIAL DEMAND
Kids v Cancer demands a trial by jury on all claims as to which a jury trial may be
had.
Dated: New York, New York
January 12, 2016
DEBEVOISE & PLIMPTON LLP
By: /s/ David H. Bernstein
David H. Bernstein
(dhbernstein@debevoise.com)
919 Third Avenue
New York, New York 10022
(212) 909-6696 (telephone)
(212) 521-7696 (facsimile)
Attorneys for Plaintiff Kids v Cancer

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