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choice just got simpler loop or recharge and by telling customers they were back to square one for their platform future first under 9th circuit precedent the nature characteristics and qualities of a product under the lanham act are more properly construed to mean characteristics of the good itself licensing status and claims about the date on which a product was first marketed are not actionable for this reason and likewise the sunsetting statements didn t refer to any inherent quality or characteristic of the parties services rather the sunsetting claims only refer to market structure and competitive dynamics in the industry which are analogous to the supply and demand phenomena that courts have found do not state a claim under 43 a even if they were actionable in principle nothing loop said was literally false the blog post truthfully reported that plaintiffs claimed that nothing would change immediately but then pointed to historical trends a prediction about future events is not an actionable statement of fact as a matter of law plaintiffs own claims didn t show that there was no risk that skio would be sunset their own public facing statements recognize that there is some uncertainty about the future of skio a linkedin post said f rankly we don t know what skio or recharge or maybe even some new platform is gonna look like in a year and a half even if the rule about future predictions only applies to good faith predictions there was no evidence of bad faith for claims like your choice just got simpler loop or recharge this wasn t literally false one reasonable interpretation of these claims is that customers now have two choices with respect to independent service providers in the marketplace this was plausibly literally true plaintiffs own announcement described skio as a recharge company and states that skio is joining recharge i would also say that this is the kind of claim often deemed puffery under similar circumstances also because consumers typically contract with service providers for longer periods the competitive choice and decision can reasonably be construed to refer to long term market structure and competitive dynamics rather than current conditions consistent with that many of the challenged advertisements frame customer choice in terms of long run impact rather than immediate market conditions that meaning was not literally false because plaintiffs have not committed to maintain skio as a long term option for consumers beyond 2028 the only necessary implications of the claims were that plaintiffs might not honor their nonbinding commitment to maintain skio through 2028 and that skio s future remains uncertain beyond that point in time and these were not matters of verifiable fact claims that skio would raise prices worsen customer support same basic analysis each advertisement read in its full context includes specific qualifiers such as not sure if all or even anything would happen with you but this is what generally happens comparison table loop conceded that the password claims were literally false and 43 a is a strict liability cause of action but there wasn t sufficient evidence of materiality there were no surveys or direct evidence from consumers that the features highlighted in the comparison table were ones about which they cared when making decisions n umerous courts have found an absence of materiality in lanham act false advertising cases when the target audience consisted of sophisticated individuals who were unlikely to be swayed by promotional materials the rest of the claims went the same way trade libel requires actual damage and that hadn t been shown with respect to the comparison table given the absence of evidence that any specific customers were exposed to it or that they cared about the password claims as opposed to other factors the balance of equities and the public interest also disfavored a preliminary injunction because it would bar loop from suggesting or implying that skio s product and features may change in various ways due to the acquisition t his would impose a limitation on marketplace competition that could otherwise benefit customers it would in effect preclude defendant from responding to plaintiffs nonbinding commitment to maintain skio as an independent service in the marketplace posted by rebecca tushnet at 12 14 pm no comments email this blogthis share to x share to facebook share to pinterest labels dastar false advertising probiotic throwdown continues w factual dispute over clinical studies exegi pharma llc v vsl pharmaceuticals inc 2026 wl 2144541 no 19 cv 02479 lkg d md jul 27 2026 this is the latest opinion in a long and tangled sequence exegi sued vsl for tortious interference with business relationships and unfair competition arising from certain letters that vsl s litigation counsel sent to exegi s manufacturers and distributors vsl counterclaimed against exegi and professor claudio de simone for false advertising under the lanham act the facts involve an eight strain high potency probiotic formulation de simone obtained several patents and other intellectual property rights for his formulation including for the probiotic formulation for the eight strain probiotic mix known as the de simone formulation he first licensed this to vsl and it was sold under the name vsl 3 he also caused samples of the eight bacterial strains comprising the de simone formulation to be deposited with the leibniz institute dsmz german collection of microorganisms and cell cultures gmbh dsmz which is a depository for the storage of strains and microorganisms and not a depository for strains for industrial production dsmz assigns each deposit a unique alphanumeric designation the vsl de simone relationship soured and he cut off vsl s access to the manufacturer of vsl 3 instead granting an exclusive license to exegi under the name visbiome exegi incorporated the dsm codes assigned by the dmsz on visbiome s packaging and packaging inserts alongside the genus and species name for each corresponding bacteria strain although visbiome has never been manufactured with the deposited material at dsmz visbiome contains all eight of the bacterial strains by genus and species listed on visbiome s packaging but vsl contends that testing of the dsmz deposits reveals that at least three of the deposited strains do not match those listed on visbiome s packaging the de simone parties argued that any mismatch was the result of contamination introduced before the strains were deposited at dsmz and not a discrepancy in the visbiome product itself previous litigation resulted in an injunction against any claims in vsl 3 promotional materials that state or suggest a false continuity between italian vsl 3 and the de simone formulation including but not limited to statements claiming that vsl 3 continues to contain the original proprietary blend or the same mix in the same proportions vsl was also enjoyed from citing any clinical study performed on the de simone formulation or implying that any such study was conducted on italian vsl 3 because they weren t the same mix the first part of this sentence seems to me to offend the first amendment vsl s litigation counsel sent a letter to counsel for danisco the manufacturer of visbiome notifying danisco of a recent judicial decision that directly impacts the legality of the continued sale and distribution of visbiome demanding that danisco take steps to immediately cease and desist from the production distribution and sale of visbiome unless and until any reference to the dsm codes is removed from its packaging and packaging inserts and from any marketing or reference materials for visbiome he claimed that any continued use of the dsm codes would constitute a misappropriation of valuable property rights and constitute false advertising vsl argued that exegi s business was not impacted by this letter because danisco continued to fill visbiome purchase orders for exegi and did not modify its supply agreement with exegi exegi argued that the letter forced it to expend substantial resources and caused lost sales vsl s counsel sent an essentially identical letter to one of exegi s visbiome sellers and distributors and also to amazon tortious interference in maryland requires 1 intentional and willful acts 2 calculated to cause damage to the plaintiffs in their lawful business 3 done with the unlawful purpose to cause such damage and loss without right or justifiable cause on the part of the defendants which constitutes malice and 4 actual damage and loss resulting relatedly common law unfair competition requires deception although it was close the court didn t find that maryland s absolute litigation privilege bars exegi s tortious interference and unfair competition claims to be entitled to that privilege vsl needed to show among other things that the letters that vsl s litigation counsel sent to danisco pharma holdings and amazon bore a rational relationship to litigation that vsl contemplated in good faith and under serious consideration it did not provide such evidence even though there was a long and well documented history of the disagreement and competition between the parties in this case related to the marketing of vsl 3 and visbiome however exegi couldn t show any damages danisco continued to manufacture visbiome and pharma holdings and amazon continued to sell visbiome after receiving the letters there was no expert testimony about any damages the cost of affirmatively suing for tortious interference couldn t count and there need to be actual damages for punitive damages to be available false advertising under the lanham act vsl alleged that the de simone parties violated the lanham act by claiming that visbiome contains the strains deposited at dsmz by stating that the current version of vsl 3 contains only seven strains of bacteria rather than eight de simone also wrote that it contains bacteria that are qualitatively and quantitatively different and that this counterfeit product has been falsely marketed and promoted to the public and medical community by stating that vsl 3 lacks clinical studies has not been the subject of any published peer reviewed controlled trials in humans untested imitation product etc by stating that vsl 3 is an imitation or knock off and by stating that vsl 3 has been discontinued or recalled vsl 3 is no longer available for sale at many retailers most of these claims failed at summary judgment though there was a factual question based on the statements that vsl 3 lacks clinical studies statements about the strains deposited at dsmz vsl didn t show that the de simone parties claimed that visbiome contains the strains deposited at dsmz the presence of the alphanumeric dsm codes didn t convey a false message because there was no showing that a consumer 1 would recognize that the letters dsm as referring to the leibniz institute dsmz 2 understand that the accompanying code is a scientific accession reference to a microbial deposit at the dsmz and 3 know that dsmz maintains physical samples of that deposit and then assume that the listing of the code means that the product contains material sourced from that particular deposit vsl s own expert acknowledged that such a chain of reasoning is beyond the grasp of most consumers statements that vsl 3 contains seven rather than eight strains for claims not barred by res judicata the only statements were in an email saying 1 that vsl 3 contains bacteria that are qualitatively and quantitatively different and 2 that vsl 3 is a counterfeit product has been falsely marketed and promoted to the public and medical community but these weren t made in interstate commerce i think the court must mean commercial advertising or promotion because they were in a single email sent to one individual as for the statement a phd level microbiologist and an expert on human gastrointestinal microflora concluded that based on his genetic analysis of the new formulation the italian vsl 3 actually only contained 7 strains of bacteria not the 8 contained in the original formulation the microbiologist did in fact reach this conclusion thus this was literally true not literally false statements that vsl 3 is an imitation or knock off these characterizations were substantially true vsl s ceo acknowledged that italian vsl 3 was the result of an attempt to reverse engineer the de simone formulation and that the vsl parties could not actually replicate the original statements that vsl 3 has been discontinued or recalled vsl 3 is no longer available for sale at many retailers many retailers ceased selling vsl 3 during the period following the issuance of the 2019 injunction related to vsl 3 so the explicit statement wasn t false statements that vsl 3 lacks clinical studies here there was a disputed issue with respect to the non res judicata barred statements the statement that vsl 3 is not supported by any published peer reviewed controlled trials was also not actionable because this statement was literally true but other statements e g vsl launched their version of vsl 3 an untested imitation product was plausibly false because the current version of vsl 3 has been the subject of 45 peer reviewed publications addressing its composition safety and efficacy since 2016 and vsl offered evidence to dispute the de simone parties contention that the testing on vsl 3 was performed on the pre 2016 formulation of this product vsl also had expert testimony about deceptiveness the court reached a similar result on the statement in response to a consumer question in an amazon product review that vsl 3 does not contain the same stains or the same strain rations and has no clinical documentation posted by rebecca tushnet at 11 31 am no comments email this blogthis share to x share to facebook share to pinterest labels false advertising tortious interference friday august 07 2026 ipsc closing plenary session ai everywhere all at once plagiarism or transformation machines evidence on copyright economic substitutes and ai stefan bechtold with david abrams christian peukert prevalence rate openai v nyt litigations includes statements about how often users use chatgpt in order to generate potentially infringing output openai normal people don t use it the way the nyt did more than 99 of the time nyt says 14 24 use for information search raising concerns corporate research for openai non work use has risen from 53 to 73 microsoft says that work career topics lead desktop usage 8am 5pm and relationship conversations surge on valentine s day used wildchat dataset 1 million chatgpt conversations from real users april 2023 may 2024 mostly gpt3 5 turbo currently focused on random sample of 10 000 prompts in english nyt rewrites are relatively uncommon more common write a six sentence para summarizing a tale of two cities write a simpsons episode where homer becomes addicted to drugs tell me what i need to know for my chemi...
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