United States:
Court Enjoins Likely False Exclusive-Formulation Statement
11 August 2016
Kramer Levin Naftalis & Frankel LLP
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Plaintiff invented a probiotic formulation that was first
manufactured by Danisco USA Inc. and sold by VSL Pharmaceuticals
Inc. under the name "VSL#3" and, after he "parted
ways" with VSL, began a new partnership with ExeGi Pharma LLC
to market the same Danisco-manufactured formulation as
"Visbiome." Protracted litigation ensued. VSL sought an
injunction to end advertising statements that VSL#3 was no longer
on the market and that Visbiome was the rebranded version of that
product. The court issued the injunction, noting that VSL had
"stockpile[d]" the formulation and could continue to sell
it; statements that the formulation was "exclusively
available" were likely to be literally false, and VSL would be
irreparably injured by the misrepresentations. View the decision.
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