Alaven Consumer Healthcare, Inc. manufactures and sells Colonix non-prescription herbal supplements and intestinal cleansers under its house brand DrNatura.  Alaven sued DrFloras LLC for trademark infringement, unfair competition, false advertising and other claims for using the trademark DrFloras for similar products.  The federal district court dismissed the infringement and unfair competition claims without trial because the judge decided that DrNatura and DrFloras were not confusingly similar trademarks. 

On appeal, the federal appeals court for the 11th Circuit concluded that the district court judge was right that there was insufficient evidence of likelihood of consumer confusion to require a trial.  Alaven Consumer Healthcare, Inc. v. DrFloras, LLC, No. 10-1131 (11th Cir., 10/12/2010).

Both companies have federal registrations and/or pending applications for their trademarks.  The marks look like this:

The side-by-side visual similarities are the “Dr” and “ra” elements of the marks and leaves in the design.  As a whole, however, they don’t have the same appearance, pronunciation or meaning and the district court judge thought they were reasonably distinct from each other. 

It is not unusual for trademarks for supplements to include “Dr” or a variation of “Natural” or “Nature.”  There are over 200 active registrations and pending applications for trademarks for supplements containing “Dr” and over 400 for marks containing variations of “Natural” or “Nature.” 

It looks like this case may have resulted from some tough marketplace competition between the products, which are similar and are marketed and distributed on the Internet to the same types of customers.  Without an obvious showing of bad faith or any evidence of consumers who were confused to tip the balance, Alaven did not have a strong enough case to go to trial.

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We often receive inquiries from companies looking for assistance with trademark matters.  For this very reason, we created a new form for use in submitting specific questions on trademark registrations.  To use our trademark form, click here.

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To read the latest issue, click here.

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Last year, Oz praised the anti-aging properties of the acai berry on Oprah’s show.  Soon, marketers began selling acai products claiming they had been endorsed by Winfrey or Oz. We previously advised about a rash of BBB reports on deceptive acai supplement marketing practices.

Oprah and Oz are represented by Marc Rachman of Davis & Gilbert in New York. The Chicago Tribune reports about a phenomenon where the health benefits of a substance is discussed on the show and then the scams start.  According to Rachman, Winfrey’s Web site has fielded more than 2,000 complaints related to acai-berry-related products.

Also joining in is the Illinois Attorney General who has filed consumer fraud lawsuits against three suppliers and a local marketer of acai berry products.  The suits allege that the companies lure customers with free trial offers, and then charge consumers’ credit cards prematurely, do not always supply the product as promised and make it challenging to cancel the orders.

The Illinios AG filed three suits, the Crush LLC Complaint , the Advanced Wellness Complaint , and the Amirouch Complaint .

To read the Oprah and Oz complaint, click here.

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Placebos don’t work when you are asleep. Or if you have Alzheimer’s disease. But they do seem to make a difference in research and clinical practice, as I found when preparing a recent article for Nutraceuticals World.

In clinical trials for subjectively reported symptoms such as pain or mental state, the placebo effect is roughly 30%. But the average varies from condition to condition. For chronic fatigue syndrome or Crohn’s disease. the average reported improvement across multiple clinical trials was 20%; for osteoarthritis it was 40%.

And for any of the nearly dozen conditions tabulated for the article, the range from trial to trial was large. In 20 studies of bipolar mania, the average was a 31% improvement in the placebo groups, but the range was from 9% to 59%.

The placebo effect is impacted by variables in the design and conduct of clinical trials. For example, a larger placebo effect was reported when subjects had higher expectations of being successfully treated, or if the trial itself was larger, longer, or had more visits per trial. Use of the opiate antagonist naloxone reverses placebo-induced pain relief, suggesting production of endogenous opioids as a mechanism

At the medical practice level, the worst-case scenario is a charismatic doctor who invents or champions a novel treatment (or surgical procedure) – and then writes a book. The certainty of the healer-researcher raises expectations in the patients, leading to positive results. Sports performance products are also subject to a strong placebo effect.

The lesson? Testimonials and open-label trial results should never be provided as sole evidence of efficacy when a product marketing campaign is challenged by a regulatory authority.

Mark

David A. Mark, Ph.D., is president of dmark consulting LLC, a science consulting company serving the dietary supplement and functional food industry. Contact him at david@dmarknutrition.com or 978-897-0890.

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Some of us remember when parents would chase their children out to play in the sun, with no protection other than play clothes.  Today, the Federal Trade Commission tells us

overexposure to the sun’s invisible rays – ultraviolet A (UVA) and ultraviolet B (UVB) – can cause skin damage. The damage can be immediate and long-term, with effects ranging from sunburn, rashes, and cell and tissue damage to premature wrinkling and skin cancer. Indeed, many skin changes that often are identified with aging actually result from damage by too much sun. . .To help reduce your risk of skin damage from sunlight, try to minimize your exposure to the sun between 10 a.m. and 3 p.m., when the sun’s rays are strongest. Even casual exposure to sunlight – driving a car, walking to the store, taking an outdoor lunch break – contributes to cumulative lifetime exposure. If you’re out during the peak hours, wear a hat and tightly-woven clothing that covers your body, and use maximum protection sunscreens.  It’s important to understand the labeling information on sun protection products and shop carefully before heading to the beach, tennis court or park. The FTC carefully monitors advertising claims in this area and offers this information to help you make wise purchasing decisions.

Consumers have taken this advice to heart, driving a highly competitive market in sun protection products.

A battle between Schering-Plough and Neutrogena over their respective advertising claims for sunscreens is heating up.  A few months ago,    Schering-Plough, maker of Coppertone  Sport sunscreens, sued major competitor Neutrogena, maker of  Ultimate Sport sunscreens, for alleged false advertising claims favorably comparing the benefits of Neutrogena’s Helioplex sunscreen formula to Coppertone’s formula.  The alleged false claim is that a sunscreen must have Helioplex to provide UVA and/or UVB protection.  Schering-Plough also complained that Neutrogena was falsely claiming that its ULTIMATE SPORT product was the “Best line of sport sun protection.”

Neutrogena fought back with counterclaims that Schering-Plough’s Coppertone Sport ads were falsely claiming that only Coppertone NutraShield with Dual Defense provides both UVA/UVB protection and antioxidants that promote skin repair, that Schering-Plough’s TV commercials falsely claim that 28% of the Ultimate Sport product sprayed on a body is chemical propellant, that Coppertone Sport sprays provide “better protective coverage” than Neutrogena’s sport sprays and that the Coppertone sprays provide better sun protection than the Neutrogena Ultimate Sport sprays.

In this Lanham Act case in the federal district court in Delaware, Schering-Plough is currently trying to obtain a preliminary injunction against Neutrogena’s sunscreen advertising claims that, if issued,  would include corrective advertising obligations.    Neutrogena is also asking the court for an injunction against Schering-Plough’s advertising claims.  It will be a long hot summer for these combatants.

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A recent study by LegalMetrics, a litigation analysis firm, named the Southern and Middle Districts of Florida among the top five districts for speed to resolution in patent infringement cases.   Since Florida has not been known as a “rocket docket” in the past, these results may seem surprising.  However, for intellectual property litigation attorneys, the recognition that Florida offers a favorable forum for facilitating the resolution of cases in a timely manner is nothing new.

The Southern District (in yellow) and the Middle District (in green) cover all Florida’s major population centers.  A survey we performed of filings of intellectual property cases in popular federal districts including these Florida Districts reveals that, with the exception of the Eastern District of Virginia, filings of IP cases have trended downward in the last several years.  Of course, fewer cases filed mean more attention for filed cases from the federal judges assigned to those cases.

Decisions in IP cases issued in early 2009 further suggest IP owners receive favorable treatment from Florida district court judges.  Among these decisions were the following:

• In a trademark infringement case filed in the Southern District of Florida, district judge Daniel T. K. Hurley denied the defendant’s motion to dismiss finding that the plaintiff trademark licensee had standing to prosecute infringements even though it was not the trademark owner.  In the process, the court adopted a liberal interpretation of standing for Lanham Act claims favorable to plaintiffs. See Trump Plaza of the Palm Beaches v. Rosenthal, Case No. 08-80408 (Jun. 24, 2009) .
• In a patent infringement case filed in the Middle District of Florida, district judge Steven D. Merryday dismissed counterclaims for unjust enrichment as preempted by federal patent law. See Mayo Clinic of Jacksonville v. Alzheimer’s Institute of America, Inc., Case No. 8:05-cv-839 (Jun. 26, 2009).
• In a patent infringement case filed in the Southern District of Florida, district judge James I. Cohn denied the defendant’s motion to dismiss and held that the plaintiff had standing to sue for infringement based upon an agreement with the original inventor in England signed before the patents were ever filed in the United States. See Flexiteek Americas, Inc. v. Plasteak, Inc., Case No. 08-60996 (Jun. 14, 2009).

Other cases demonstrate a willingness among Florida district judges to find personal jurisdiction over defendants based upon very minimal contacts including activities on the Internet.  Recent decisions have indicated that Florida courts will follow liberal standards for jurisdiction where simply maintaining an interactive website accessible on the Internet from Florida will subject a defendant to personal jurisdiction in the Sunshine State.

The moral of this story: when considering where to file an infringement action, intellectual property owners, including owners of trademarks, copyrights and patents, as well as counsel for these owners, would be wise to consider filing in the Southern or Middle Districts of Florida.  Of course, IMHO, my firm Arnstein & Lehr LLP, with its vast Florida litigation resources and experience prosecuting infringements would be an excellent choice to partner with as knowledgeable counsel for such cases.

PR: wait… I: wait… L: wait… LD: wait… I: wait… wait… Rank: wait… Traffic: wait… Price: wait… C: wait…

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Companies keen on product development will likely get a boost from the compromise version of the stimulus bill that the House was set to vote on Friday. There are billions of dollars for government research grants and millions for construction of research buildings. The final legislation did pull back in areas such as agriculture. Here are the highlights, according to Inside Higher Ed:

• National Science Foundation: $3 billion, including $2.5 billion for research, $400 million for infrastructure and $100 million for education.
• National Institutes of Health: $10 billion, including $8.5 billion for research and $1.5 billion for university research facilities.
• National Institute of Standards and Technology: $180 million for competitive grants for research building construction.
• Energy Department: $2 billion for research, including $1.6 billion for Office of Science, $400 million for Advanced Research Project Agency-Energy; no money for infrastructure.

For a perspective on what the funds could mean for research, read or listen to this NPR report. Another view comes from a blog at The Scientist under the headline, “NIH wins stimulus jackpot.” Because there are so many versions of the bill, read it here in PDF format.

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After an FDA warning letter told True Renewal to either register its products with the agency or change claims on its Web sites, the supplement maker has altered product descriptions. The FDA targeted five products, saying the Web sites claimed the items could be used to cure, treat or prevent disease.

Product descriptions on the Web site now differ from the FDA citations. For one product, Miracle Mineral Supplement, the FDA said that True Renewal claimed, “Hundreds of lives have been saved. Reports of overcoming incurable diseases are happening every day.”  The product page for the supplement now reads in part, “Any information provided herein is for educational purposes only and is NOT meant to diagnose, treat, cure or prevent disease.” The home page for Miracle Mineral Supplement also has this disclaimer: “The Miracle Mineral Supplement is not FDA approved and is not intended for human consumption.”

Similarly, the FDA said the company had claimed that Graviola contained compounds “that are 10,000 times stronger than chemotherapy and act only on cancer cells, not healthy cells!” Now, the Web page for Graviola lists ingredients, contraindications and drug interactions.

True Renewal is based in Provo, Utah. Three Web pages providing company and contact information list street and e-mail addresses, and a fax number. The FDA addressed its warning to Jenine M. Cohoon. According to one biography, she holds a Ph.D. in holistic nutrition. Her Web site, which the FDA cited in its letter, now has no content and points to True Renewal.

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