Beware of Awakened – Review Part 3

The introduction of Awakened wasn’t the most seamless.

The business pre-launched with an NFT cash grab that could have defrauded affiliates of tens of millions of dollars.

Concerning a legal conflict between Vietal Nutrition and First Fruits Business Ministries, Pinnacle, the main supplement of Awakened, has also been plagued by controversy.

On September 1st, I made an effort to sort through the Zenith patent muck. I concluded that even though FFBM and owner Roger Catarino were the targets of a 2013 decision against Vietal Nutrition, it had no real practical application.

Whatever verdicts Vietal Nutrition might have reached, it was obvious that FFBM had been producing Trisynex supplements for well over a decade.

Trisynex, the primary component of Zenith, is covered under Patent No. 6,899,892. Anyone who searches for it will be able to see that FFBM received it in 2011.

The cynic in me thinks Awakend’s debut with Zenith is a result of the patent expiring earlier this year.

The assertion that Awakened possessed global exclusivity over Trisynex was crucial to its debut. It was claimed that this was obtained from Vietal Nutrition, which was absurd given the ‘892 patent.

Roger Catarino got in touch with me after I published that exploratory post to let me know he had given Awakened a stop and desist letter.

Reid Winthrop, an attorney with Vietal Nutrition, contacted me after writing about the Awakened cease and desist letter.

Winthrop first reaffirmed the assertions I was previously largely familiar with and considered to be essentially useless for the reasons mentioned above.

No matter how many court orders and legal documentation were presented, FFBM’s name was still on the ‘892 patent that had expired, and they kept making Trisynex.

It looked that Vietal Nutrition had sold the rights to a supplement formula that they technically did not hold unless there were significant advancements.

The “significant development” I was searching for occurred on September 13. A Californian judge mandated that FFBM be taken over by a receiver.

The expired ‘892 patent is owned by FFBM, although Winthrop asserts that Tripharma, the previous marketing name of Vietal Nutrition, holds sole rights to it.

TriPharma was granted new, valuable, and exclusive intellectual property rights, to the exclusion of all others, by its license in 2006/2007 and a later modification (2013).

The power to exclude is one of a patent’s most valuable features. Anyone else who wants to “use” the patented technique (or product) must refer to the patent and receive notification from the patent holder.

Even the assignee/holder of the ‘892 Invention, First Fruits/Catarino, was not permitted to use the patent, since TriPharma held an exclusive license to it.

The mud is clear? Winthrop asserts that TriPharma acquired exclusivity from Imagenetix, the original ‘892 patent owner, and continued to hold onto that monopoly even after the ‘892 patent was transferred to FFBM in 2011. Yeah, I’m not too sure about that either, but Winthrop makes that claim.

Don’t worry if you’re still unclear about how that operates. Set that aside and catch up on the current state of affairs.

The court outlined the background of the ‘892 patent as follows, using the 2013 $4.6 million default judgment against Catarino and FFBM:

Before relinquishing its rights, Imagenetix, the organization that had “essentially all the rights connected with the ‘892 Patent,” entered into arbitration with Tripharma over the Patent.

In general, Tripharma’s exclusive rights to the Patent under its sublicensing arrangement with Imagenetix at the time were upheld by the arbitration decision in its favor.

The arbitrator ordered an “injunction” extending the licensing agreement to the Patent until October 2014 after concluding that this arrangement had given Tripharma exclusive rights to the Patent at that time.

In March 2012, Tripharma filed a lawsuit alleging patent infringement against FFBM. A default judgment was granted in April 2013 since FFBM failed to respond to the action.

The Court approved the motion for default judgment on April 2, 2013, and awarded Tripharma $4,659,990 following a hearing on the subject.

Judgment. On May 20, 2013, the Court rejected First Fruits’ request to have the default and default judgment vacated and granted Tripharma $643,360.50 in lawyers’ costs.

For the following year and a half, not much transpired after that ruling.

The exclusivity injunction from October 2014 was lifted. And from what I hear, FFBM either kept producing Trisynex supplements or started over.

TriPharma brought a new lawsuit against FFBM in October 2021. As the court has recognized;

That lawsuit is still pending. The Patent’s rights are still up for debate.

This concurs with my former view regarding litigation and patent ownership.

TriPharma requested the appointment of a Receiver in their case from October 2021 so that they could take over FFBM. This was an effort to carry out the $4.6 million 2013 decision.

Tripharma’s original application for the appointment of a receiver, in this case, was dismissed by the court on May 4, 2022.

The Court determined that Tripharma had not sufficiently shown its attempts to collect the Judgment via legal remedies and its subsequent failure to do so.

On May 19, TriPharma made another attempt. This time, the company requested an ex-parte injunction “enjoining the disposal and/or fraudulent conveyance of intellectual property assets.”

On June 8th, the court issued the desired injunction.

First Fruits then submitted an ex parte application asking for further information on the parameters of the preliminary injunction.

First Fruits argued that the preliminary injunction was only meant to prevent the company from selling, assigning, transferring, or otherwise disposing of any intellectual property it owned or controlled; it did not cover any money it made from the use of the IP.

Tripharma has looked for the money to pay the judgment.

The court had a harsh reaction to FFBM’s application.

“The Court is prepared to rethink its prior order refusing the appointment of a receiver,” the court said in denying First Fruits’ motion.

TriPharma responded by submitting a second motion to appoint a Receiver.

The court argued that this time;

Tripharma has made significant efforts to find assets and collect on the judgment since the court rejected its initial request for a receiver. These efforts include serving post-judgment discovery, obtaining an exemplified judgment and starting collection proceedings in South Carolina, making additional demands for payment of money toward the judgment and order, and filing for an injunction preventing First Fruits from harming Tripharma any further.

Tripharma contends that a receivership is the only way to collect the judgment that is due since Tripharma tried to collect the judgment over the period of nine years, and more recently engaged in significant post-judgment activities; all of these attempts were unsuccessful.

Tripharma also argues that aside from its intellectual property holdings, First Fruits has no other assets that a receiver may seize to pay the judgment.

TriPharma, according to FFBM, requested the appointment of a Receiver “to avoid the IP lawsuit by seizing control of the IP assets in question, such the Patent.”

First Fruits contends that Tripharma has not made a sincere effort to implement the judgment using the less extreme remedies at its disposal.

First Fruits argues in favor of this claim by saying that it tried to negotiate with Tripharma to pay 25% of all incoming monthly earnings for the Trimfit for Life product.

Tripharma declined, which First Fruits claims show that Tripharma is not interested in getting paid but instead wants to take control of the intellectual property assets and prevent First Fruits from being able to defend itself in the concurrent legal dispute over these assets.

The judge dissented…

First Fruits claims that it is cooperating, although, for more than nine years, First Fruits has made every effort to avoid satisfying the Judgment.

The proposal by First Fruits for 25 percent of the earnings from one of their products, Trimfit for Life, to be paid out monthly, is insufficient both in terms of content and time.

…but was hesitant to relinquish command of FFBM’s “IP assets”.

The Proposed Order gives the Receiver a too wide range of power, and the Court agrees.

There are already several provisions in the proposed order that would grant the receiver administrative and operational power as well as the transfer of all of First Fruits’ intellectual property assets to Tripharma.

The Court disputes the idea that these powers are required for the current objectives under-examined.

The Court then appointed an FFBM Receiver with the intention of

To gather all profits and income from the receivership property and levy it as needed to help with the judgment’s collection.

TriPharma has been given fourteen days to file a fresh Proposed Ruling for the court to examine, omitting the “IP assets” items, by the court’s order from September 13th.

When a Receiver is appointed, FFBM is effectively prevented from making money off the sale of Trisynex supplements until the $4.6 million judgment against them is met.

I’m not familiar with FFBM’s annual income, but that could take some time.

Unfortunately, a final decision about uncovering the facts behind the transfer of exclusive rights to Awakened depends on the result of the lawsuit Tripharma LLC v. First Fruits Business Ministry LLC et al (case number: 8:21-cv-01806).

The lawsuit that the Court is referring to was very recently filed in October 2021. According to the court, “the rights to the Patent remain unresolved” awaiting the resolution of the dispute.

As a result, I’m changing my previous conclusion that Vietal Nutrition is selling the rights to a product that they don’t seem to own to Vietal Nutrition selling the rights to a product whose ownership is still up in the air.

The appointment of a Receivership will undoubtedly have an influence on FFBM’s business activities and, dare I say it, tilt the balance in TriPharma’s favor in the October 2021 lawsuit.

A jury trial has been planned for March 28th, 2023, barring an earlier resolution.

Both sides are currently firmly entrenched. On May 19, TriPharma submitted a second amended complaint. On August 19, FFBM submitted a first amended counterclaim.

Decisions on motions to dismiss the complaint and the counterclaim that were filed are still pending.

First Fruits Business Ministry LLC v. Tripharma LLC has been added as a case to be tracked by BehindMLM. Dare I imply that Awakend’s future hinges on how the case turns out?

While this patent snafu is being worked out, I still believe Awakend should never have been released.

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