modifying a false advertising injunction is justified when likelihood that claim is false has changed

De Simone v. VSL Pharmaceuticals, Inc., No. TDC-15-1356, 2018 WL 4567111 (D. Md. Sept. 24, 2018)De Simone sought modification of a preliminary injunction governing statements it could make about a probiotic product, VSL#3and its relationship to De Simone’s now-competing product, Visbiome.  (I was a bit critical at the time.) They sought to be able to advertise that ExeGi Pharma was the exclusive provider of the “De Simone Formulation,” the term they have coined for the combination of probiotic strains developed by De Simone and first commercialized in the United States as VSL#3; to cite clinical studies with the term “VSL#3” in the title as part of their promotional materials; and to engage in other speech critical of VSL#3. As relevant here, the prior order required ExeGi to refrain from “stating or suggesting that the license agreement” between De Simone and VSL had “expired,” or asserting that “VSL#3 will no…

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