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e 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 chemistry exam some overprotection write the lyrics to rocky road to dublin in english w native irish beside them that request was refused despite the public domain status of the work looking for whether users are looking for potential infringements or potential substitutes e g replacements for chemistry textbook and also looking for whether the output is refused b c of guardrails results 3 7 of sample prompts and outputs model identifies infringement risk guardrails only trigger in 0 13 of cases 1 19 over 2 potential economic substitute risk according to classification the substitute infringement groups don t overlap a ton next steps openai says 28 1 of their users are asking for writing tasks our data around 34 5 thinking about different classifier refinement e g what happens w minimal prompt to our classifier feeding it a textbook classifying w other llms the ai penalty in trade secret law camilla hrdy mike schuster with joe avery bias against self driving cars crashes are perceived as more serious as well as ai generated works trade secret liability often turns on whether improper means were used does this vague and morally charged standard lead to arbitrary distinctions in misappropriation cases scenario website provides insurance quotes no tos limit on request confidential quote database underlying it defendant competitor queries database recreates underlying dataset trade secret human 100 000 spent on 20 hourly employees over 5 weeks to systematically request different quotes ai 100 000 spent on specialized ai that systematically requested different quotes 500 mock jurors were asked would you have brought this lawsuit were means improper etc outcomes significantly more likely to find liability higher compensatory damages less ethically acceptable w ai note that liability improper means were above 50 for human use too only not statistically significant result was on punitive damages ai penalty makes more sense in trade secret than in patent improper means is open ended concept we d expect more bias 11th cir 2020 while manually accessing quotes is unlikely ever to constitute improper means using a bot to collect an otherwise infeasible amount of data may well be that case was scraping w o ai but ai is a subset of automation ai trade secret ai used to steal trade secrets cases are coming there have already been a smattering agentic ai will be a perfect accomplice whether from direct prompts or escapes don t want a bright line rule reasonable measures should still be required but this all makes sense it s important to update rules over time flying over a plant is very different in 1970 and 2026 the value of knowing what works ai and unprotectable ip sarah polcz interviews w researchers at frontier ai labs spending enormous sums to poach researchers 100 million year reported salaries how can individual researchers possibly be worth so much most valuable ip is the least protectable high level insights that are short abstract and easily carried from lab to lab in heads of researchers ip like specific blocks of code or weights of model is comparatively less valuable high level insights also move among researchers socially where there s no current employment relationship aith circuit court of appeals nikola datzov with david schwartz ai judging models showed no meaningful prompt sensitivity shockingly accurate capable depending on complexity of the case key driver is ai s confidence in outcome patent cases appear more complex but show the same trends and capabilities ai models can identify which cases they can 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