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Schulman Bhattacharya secured another major victory last week for ExeGi Pharma, LLC and its flagship probiotic product, Visbiome. In ExeGi’s lawsuit against competitor Brookfield Pharmaceuticals, LLC, the United States District Court for the Eastern District of Wisconsin granted in part ExeGi’s motion for partial summary judgment, finding in ExeGi’s favor as to liability on its Lanham Act false advertising and common law unfair competition claims.  While ExeGi will go to trial to determine its damages, Judge J.P. Stadtmueller agreed to enter an immediate permanent injunction against Brookfield.  The permanent injunction, which can be found here, orders that Brookfield (along with all of its agents and affiliates) is prohibited from making certain statements comparing its product, “High Potency Probiotic (“HPP”),” to Visbiome – statements that the Court found were literally false.

ExeGi alleged several causes of action against Brookfield, including false advertising under the Lanham Act and common law unfair competition, based upon Brookfield’s marketing of HPP.  In short, ExeGi alleged that Brookfield improperly compared its product to Visbiome – which is composed of the unique and acclaimed eight-strain probiotic blend created by Professor Claudio De Simone – and that Brookfield profited off of the false comparison to ExeGi’s detriment.  The Court agreed that several of Brookfield’s statements about HPP were made in the course of commercial advertising or promotion and were literally false.  Specifically, in his 44-page opinion, which can be found here, Judge Stadtmueller found that Brookfield’s claims that HPP is the “generic equivalent” of Visbiome; that HPP contains “the same strains” as Visbiome; and that HPP contains “the same probiotic bacteria” as Visbiome were literally false and constituted violations of the Lanham Act.

In entering the Permanent Injunction, Judge Stadtmueller noted that, ExeGi “prevailed in part on the merits of its claims under federal law for false advertising and under Wisconsin law for unfair competition,” and that without injunctive relief, ExeGi would suffer irreparable harm.  As such, Judge Stadtmueller ordered that Brookfield and its agents and affiliates were “immediately … enjoined from stating or suggesting in any communications directed at or readily accessible to (i) consumers or (ii) intermediaries in the chain of distribution,” any of the above-referenced statements.  In addition, Judge Stadtmueller ordered that within 14 days of the entry of the injunction, Brookfield must send corrective letters to all consumers and intermediaries in the chain of distribution of HPP, stating that HPP is not the generic equivalent of Visbiome, does not contain the same strains as Visbiome, and does not contain the same probiotic bacteria as Visbiome.

The legal team handling this matter – Jeremy Schulman, Jeffrey Gavenman and Jake Schaller – now will proceed to trial on ExeGi’s damages claim.  Also to be determined at trial is whether Brookfield’s statement that HPP is “generic” of Visbiome is literally false, as well as ExeGi’s cause of action against Brookfield for tortious interference.

Schulman Bhattacharya is an international law firm based in the Washington, D.C. area focused on resolving the most complex and challenging commercial disputes facing its clients— through litigation, arbitration, mediation, and informal negotiation. The Firm’s attorneys have vast experience representing clients in nearly every industry sector. The Firm represents companies of all sizes, locally, regionally, nationally, and internationally, and it represents individuals with valuable commercial and personal interests to protect.

Schulman Bhattacharya secured another major victory last week for ExeGi Pharma, LLC and its flagship probiotic product, Visbiome. In ExeGi’s lawsuit against competitor Brookfield Pharmaceuticals, LLC, the United States District Court for the Eastern District of Wisconsin granted in part ExeGi’s motion for partial summary judgment, finding in ExeGi’s favor as to liability on its Lanham Act false advertising and common law unfair competition claims.  While ExeGi will go to trial to determine its damages, Judge J.P. Stadtmueller agreed to enter an immediate permanent injunction against Brookfield.  The permanent injunction, which can be found here, orders that Brookfield (along with all of its agents and affiliates) is prohibited from making certain statements comparing its product, “High Potency Probiotic (“HPP”),” to Visbiome – statements that the Court found were literally false.

ExeGi alleged several causes of action against Brookfield, including false advertising under the Lanham Act and common law unfair competition, based upon Brookfield’s marketing of HPP.  In short, ExeGi alleged that Brookfield improperly compared its product to Visbiome – which is composed of the unique and acclaimed eight-strain probiotic blend created by Professor Claudio De Simone – and that Brookfield profited off of the false comparison to ExeGi’s detriment.  The Court agreed that several of Brookfield’s statements about HPP were made in the course of commercial advertising or promotion and were literally false.  Specifically, in his 44-page opinion, which can be found here, Judge Stadtmueller found that Brookfield’s claims that HPP is the “generic equivalent” of Visbiome; that HPP contains “the same strains” as Visbiome; and that HPP contains “the same probiotic bacteria” as Visbiome were literally false and constituted violations of the Lanham Act.

In entering the Permanent Injunction, Judge Stadtmueller noted that, ExeGi “prevailed in part on the merits of its claims under federal law for false advertising and under Wisconsin law for unfair competition,” and that without injunctive relief, ExeGi would suffer irreparable harm.  As such, Judge Stadtmueller ordered that Brookfield and its agents and affiliates were “immediately … enjoined from stating or suggesting in any communications directed at or readily accessible to (i) consumers or (ii) intermediaries in the chain of distribution,” any of the above-referenced statements.  In addition, Judge Stadtmueller ordered that within 14 days of the entry of the injunction, Brookfield must send corrective letters to all consumers and intermediaries in the chain of distribution of HPP, stating that HPP is not the generic equivalent of Visbiome, does not contain the same strains as Visbiome, and does not contain the same probiotic bacteria as Visbiome.

The legal team handling this matter – Jeremy Schulman, Jeffrey Gavenman and Jake Schaller – now will proceed to trial on ExeGi’s damages claim.  Also to be determined at trial is whether Brookfield’s statement that HPP is “generic” of Visbiome is literally false, as well as ExeGi’s cause of action against Brookfield for tortious interference.

Schulman Bhattacharya is an international law firm based in the Washington, D.C. area focused on resolving the most complex and challenging commercial disputes facing its clients— through litigation, arbitration, mediation, and informal negotiation. The Firm’s attorneys have vast experience representing clients in nearly every industry sector. The Firm represents companies of all sizes, locally, regionally, nationally, and internationally, and it represents individuals with valuable commercial and personal interests to protect.