sales show format and timing are functional, court finds

VBS Distribution, Inc. v. Nutrivita Laboratories, Inc., No. SACV 16-01553-CJC(DFM), 2018 WL 5274172 (C.D. Cal. Sept. 10, 2018)The parties compete in the market for nutritional supplements and television programs. VBS sued for Lanham Act and California state unfair competition law violations, as well as other claims including trade secret misappropriation.  None worked.VBS alleged two unlawful schemes, the first involving false advertising of a dietary supplement. The supplement defendants made and sold “Arthro-7,” a dietary supplement for joint relief, with 60% of the market (perhaps among elderly people/people of Vietnamese descent). VBS sold a competing dietary supplement called JN-7 Best, with 10% of the market.  Defendants allegedly falsely advertised that Arthro-7 is “100% natural herbal,” that over 8 million bottles have been sold, and that Arthro-7 has been “clinically tested” and is “Doctor Recommended.”…

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