Claims for unfair competition need to be filed promptly if the injured party wants to get the full effect of the remedies provided by the Lanham Act. A New Jersey District judge recently denied a plaintiff’s motion for a preliminary injunction on the basis that the plaintiff waited too long to bring the motion, suggesting that the claims of irreparable harm were unmerited.
In so holding, the judge made clear that if a party’s interests are potentially threatened by another warranting preliminary relief in the form of an injunction, file the unfair competition action promptly or else run the risk of being denied relief.
The plaintiff in Advanced Oral Technologies, LLC v. Nutrex Research, Inc., 2011 WL 198029 (D.N.J.), was the sole manufacturer and distributor of a patented molecule used in the bodybuilding supplement eNoxide.
Defendant was the manufacturer of the supplement known as Hemo Rage Black and incorrectly included eNoxide as one of the ingredients in its supplement. The defendant claimed the listing was a mistake resulting from the fact that it had attempted to license the ingredient and the packages inadvertently included eNoxide as one of the ingredients.
Plaintiff waited thirteen months after first discovering harm to its business, and over seven months after potential settlement negotiations broke down, to bring an unfair competition lawsuit under the federal Lanham Act. The defendant took certain steps to stop new labels of its supplement from containing the molecule name, and also took steps to black out current released bottles’ ingredient lists.
The Irreparable Harm Standard
For a court to uphold a party’s motion for a preliminary injunction, the moving party bears the burden of proving that (1) it has a likelihood of success on the merits, (2) it will suffer irreparable harm if the injunction is denied, (3) granting preliminary relief will not result in even greater harm to the nonmoving party, and (4) the public interest favors such relief. In Lanham Act cases for false advertising, irreparable harm is presumed if the challenged advertising makes a misleading comparison to a competitor’s product.
The judge found that the insertion of plaintiff’s molecule on defendant’s ingredient list will not cause irreparable harm because the false advertising is “non-comparative and makes no direct reference to and competitor’s product.” Furthermore, irreparable harm will not be presumed because of plaintiff’s delay in bringing the action. The judge could conceive of only two possible scenarios for the delay: first, that plaintiff believed that defendant had corrected the labels, or second, that plaintiff looked for, but did not find, any misstated labels. Either way, the judge denied plaintiff’s motion for preliminary relief.