June 26, 2014
On May 6, 2014 VitaminsOnline, Inc., a Delaware corporation (“VOI”), filed a complaint against Dynamic Industries, LLC, a Nevada limited liability company, and Christopher Wilson, a resident of Georgia (collectively “Dynamic”), alleging false advertising and unfair competition under Section 43 of the Lanham Act, deceptive trade practices under Georgia law, and common law false advertising in regards to the sale of online dietary supplements.
VOI markets and sells vitamins and dietary supplements over the Internet, including on Amazon.com. One of VOI’s products is “Nutrigold® Garcinia Cambogia Gold” (“Garcinia Gold”), which contains 60% Hydroxycitric acid (HCA) and has been shown to suppress appetite and support weight loss. Another product VOI sells is “Nutrigold® Svetol® Green Coffee Gold” (“Green Coffee Gold”), which contains 100% Svetol® green coffee extract and no generic green coffee extracts.
Dynamic also sells vitamins and dietary supplements over the Internet, including on Amazon.com. One of Dynamic’s products that is in direct competition with Garcinia Gold is “Dynamic Pure Garcinia Cambogia Extract” (“Pure Garcinia”). Another one of their products, formerly labeled “Pure Svetol® Green Coffee Extract,” now called “Pure Green Coffee Bean Extract” (“Pure Green Coffee”), competes directly with Green Coffee Gold.
VOI alleges unfair competition and false and misleading advertising stemming from Dynamic’s Amazon.com listings and product labels for Pure Garcinia and Pure Green Coffee. The allegedly false representations include: the percentage of HCA in Pure Garcinia, the use of “vegetarian” capsules made of plant cellulose, Pure Garcinia being covered by multiple patents, the “fillers” included in Pure Garcinia, products being “clinically proven,” and the amount of Svetol green extract contained in the product. An independent test laboratory tested Dynamic’s Pure Garcinia capsules and refuted the claims listed above. Further, VOI alleges that Dynamic is posting numerous fake favorable online reviews on Amazon.com about Pure Garcinia and Pure Green Coffee. Lastly, VOI asserts that Dynamic’s product descriptions for both of their competing products are nearly verbatim copies of VOI’s product pages.
VOI brought suit for federal false advertising in violation of 15 U.S.C. § 1125(a)(1)(B), alleging that Dynamic knew, at all relevant times, that their statements were inaccurate. Due to these allegedly inaccurate statements, VOI argues that the public is likely to be deceived and this deception will have a material effect on purchasing decisions. VOI further asserts that Dynamic’s purported false and misleading advertising has caused damage to VOI’s business, reputation and goodwill.
VOI also claimed federal unfair competition under 15 U.S.C. § 1125(a)(1)(A), alleging that Dynamic’s use of nearly verbatim copies of VOI’s advertisements have created, caused and/or contributed to a false association between Dynamic’s and VOI’s products. According to the complaint, these actions constitute a false designation of origin, sponsorship or approval in violation of the Lanham Act that will cause damage to VOI and create confusion for consumers.
VOI demanded an injunction stopping Dynamic from continued use of the labels and advertisements, an Order requiring Dynamic to circulate corrective advertising, punitive damages and attorney’s fees.
On May 30, 2014, Dynamic Industries and Christopher Wilson separately moved to dismiss the complaint for failure to state a claim, lack of standing, and lack of personal jurisdiction. The motions are pending.
The case is Vitamins Online, Inc. v. Dynamic Industries, LLC, Case NO. 1:14-cv-01366-SCJ, filed May 6, 2014 in the United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Steve C. Jones.
(By Preston H. Heard)