Court Enjoins Likely False Exclusive-Formulation Statement

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United States Litigation, Mediation & Arbitration

Norman C. Simon,Eileen Patt,Benjamin Arrow

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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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