Opinion
Case No. 2:03-CV-578TC
September 24, 2003
ORDER
Plaintiff Zoller Laboratories ("Zoller") and Defendants NBTY, Inc. and Nature's Bounty (collectively, "Defendants") sell competing ephedra-free weight loss dietary supplements. Zoller's product is called Zantrex™ 3 ("Zantrex-3"), while Defendants' product is called Xtreme Lean™ ZN-3 ("ZN-3"). Zoller filed its complaint in this action on June 27, 2003, alleging that Defendants are liable for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a) 1141 (2003), the Utah Unfair Practices Act, Utah Code Ann. § 13-15-1 et seq. (2003), and Utah common law. In its Motion for Preliminary Injunction, Zoller asks the court to enjoin Defendants from making certain comparative statements in their marketing of ZN-3, statements which Zoller argues are "literally false by necessary implication."
In Plaintiff's Supplemental Memorandum on Remedies, Zoller argues that "new information" going to Defendants' "duplicity and bad faith"justifies more comprehensive remedies, including (1) Defendants' preclusion from any further marketing of ZN-3, (2) immediate recall of all bottles of ZN-3; and (3) Defendants' promulgation of corrective advertising. But the court declines to consider evidence contained in the Supplemental Memorandum, submitted in the eleventh hour before the hearing on this motion for preliminary injunction. Further, as far as the appropriate remedies, the court is mindful of the "well-settled principle that an injunction must be narrowly tailored to remedy the harm shown."Big O Tires. Inc. v. Bigfoot 4x4, Inc., 167 F. Supp.2d 1216, 1221 (D. Colo. 2001) (citations omitted).
BACKGROUND
The focal point of the parties' dispute is Defendants' advertising statement, "Compare to Ingredients of Zantrex-3." This statement, directing consumers to compare the ingredients of ZN-3 and Zantrex-3, is printed on every bottle of ZN-3 (PL's Hearing Ex.'s 2 3), on each individual section of Defendants' ZN-3 point of purchase store display (PL's Hearing Ex. 4; Pl.'s Ex.'s Attached to Mem. Supp. Mot. Prelim. Inj.), on various print advertisements, (PL's Mem. Supp. Mot. Prelim. Inj. at 14; "Compare and Save Flyer," PL's Ex.'s Attached to Mem. Supp. Mot. Prelim. Inj.) and on Defendants' internet website (PL's Mem. Supp. Mot. Prelim. Inj. at 14; PL's Hearing Ex. 5).A comparison of the labels of the two products reveals a number of apparent similarities. First, the purported benefits and effects of the products, printed on the front labels, are almost identical where: (1) both claim to be "dietary supplement[s];" (2) Zantrex-3 announces it contains "no ephedrine," and ZN-3 claims to be "ephedra free;" (3) Zantrex-3 advertises "rapid weight loss," while ZN-3 claims to "support weight loss" and (in another part of the label) advertises "rapid action;" and (4) Zantrex-3 advertises "extreme energy," and ZN-3 says it "promotes energy levels." (Pl.'s Hearing Ex.'s 1 — 3.) Furthermore, if consumers turned the bottles over and (as Defendants suggest) "[c]ompar[ed] [ZN-3's ingredients] to ingredients of Zantrex-3," they would find that the two products have almost identical (if not identical) fourteen ingredients, including (1) Niacin, (2) Yerba Mate (bark), (3) Guarana (seed), (4) Caffeine (listed in ZN-3 as contained in the Yerba Mate, Guarana, Cocoa Nut, and Kola Nut ingredients in "standardized" form, (5) Damiana (leaf, stem) (called simply Damiana (leaf) in ZN-3), (6) Schizonepeta (spica) (called Schizonepeta (herb) in ZN-3), (7) Green Tea (leaf) (called Green Tea Extract (leaf) in ZN-3), (8) Piper Nigum (fruit) (called "White Pepper (Piper nigrum) (fruit) in ZN-3), (9) Tibetan Ginseng (root) (called "Tibet-seng (root) in ZN-3), (10) Panax Ginseng (root), (11) Maca Root, (12) Cocoa Nut, (13) Kola Nut, and (13) Thea Sinensis Complex (leaf) (called "Thea Sinensis (Tea) Complex (leaf) in ZN-3). (Id.) Both products describe their combinations of the thirteen ingredients other than Niacin as "Proprietary Blend" (or more specifically by ZN-3, a "Proprietary Thermogenic Blend") (Id.) Moreover, neither product lists actual amounts or daily value percentages for any of the ingredients other than Niacin. (Id.) And both contain warnings about high caffeine content. (Id.)
Despite references in Zoller's supporting memorandum and web site to a published, double-blind clinical study supporting Zantrex-3's effectiveness, the study itself is not in evidence. (See PL's Mem. Supp. Mot. Prelim. Inj. at 6; Pl.'s Hearing Ex. 7; Def.'s Hearing Ex. B.) Indeed, there is no evidence before the court documenting theactual effects (comparative or otherwise) of the two products.
One slight difference is that ZN-3 includes the Latin names of most ingredients parenthetically. Moreover, the ZN-3 label claims that a number of the ingredients are "standardized" to contain certain percentages of substances like Polyphenoids, Ginsenosides, Macamides, Macaenes, Theobromine, and (most significantly) caffeine.
Differences between the two products are also apparent from a reading of the back labels. First, the two have different dosage recommendations. Zantrex-3 recommends that the consumer take two capsules containing 1312 mg of the "proprietary blend" 15 minutes before main meals with a full glass of water, whereas ZN-3 recommends one capsule containing 656 mg (exactly one-half of Zantrex-3's amount) of the "proprietary blend" up to three (3) times a day with a full glass of water for ZN-3). The amount of Niacin contained in one serving of Zantrex-3 is 30 mg (250% daily value), while the amount contained in ZN-3 is 25 mg (125% daily value). Furthermore, the two products vary in their list of "Other Ingredients:" Zantrex-3 lists only "Rice Flour," while ZN-3 lists "Gelatin, Rice Powder, Vegetable Magnesium Stearate, Silica, Titanium Dioxide Color." Moreover, Defendants make an additional general statement that
Xtreme Lean™ ZN-3 is a proprietary blend of all the right ingredients for helping to promote weight loss while maintaining energy levels. Our specialized blend includes Guarana, Yerba Mate, Maca, Ginseng and the revolutionary new weight control ingredient, Green Tea. When used with a reduced calorie diet and exercise program, this ephedra-free formula activates Thermogenesis to help burn calories and rid your body of that unwanted baggage."
(Id)
One fundamental and readily apparent difference between the two products is price; Zantrex-3 is nationally advertised at $49.00 (for 84 capsules of 681 mg), while in Wal-Mart, where ZN-3 is currently being sold, ZN-3 costs $14.43 (for 90 capsules of 656 mg). (Pl.'s Mem. Supp. Mot. Prelim. Inj. at 11; Pl's Hearing Ex.'s 1-3.) The Wal-Mart presence is itself another significant difference: While Defendants moved the ZN-3 product and its point of purchase displays into Wal-Mart Stores in July of 2003, Zoller has not yet, as of the hearing held on September 16, 2003, entered Wal-Mart with Zantrex-3. (PL's Mem. Supp. Mot. Prelim. Inj. at 9.)
Zoller refers to Wal-Mart as the "crown jewel" of product distribution, notes that "Wal-Mart represents that at least one-hundred million (100,000,000) consumers visit Wal-Marts stores each month." and emphasizes (without supporting evidence) that Zantrex-3 is to "commence distribution in Wal-Mart at the end of September 2003." (PL's Mem. Supp. Mot. Prelim. Inj. at 2, 14; Affidavit of Dennis W. Gay ("Gay AfF.") at ¶ 9.) It is within this sought-after Wal-Mart market that Zoller claims that "sales of Zantrex-3 are systematically being undermined by thousands of point of purchase (POP) displays falsely claiming that Defendants' purported diet pill, ZN-3, is a cheaper, generic equivalent of Zoller's Zantrex-3." (Id.)
Defendants have admitted generally that "there are in fact important differences between the formulation and composition of Extreme Lean ZN-3 and Zantrex-3, including the relative per-serving concentrations of caffeine." (Ans. ¶ 33.) But relying on the fact that the two products "both contain proprietary and confidential blends of ingredients," Defendants claim to lack knowledge sufficient to form a belief as to the specific differences in amount and/or concentration of Yerba Mate, Guarana, and Damiana ("YGD," the weight loss component) and xanthines (the stimulant or energy component). (Id. at ¶¶ 31-33.) Ultimately, though, as Defendants themselves point out,
"Simple arithmetic" shows that if Defendants [whose product contains 656 mg of their "proprietary blend" of the thirteen key ingredients], like Zoller, recommended two-capsule servings of Xtreme Lean ZN-3 rather than one-capsule servings, a two-capsule serving of Xtreme Lean would contain 1312 milligrams of Defendants' "proprietary blend" of the thirteen ingredients-exactly the same as the amount of Zoller's "proprietary blend" contained in a two-capsule serving of Zantrex-3.
(Def.'s Mem. Opp. Mot. Prelim. Inj. at 11.) The central factual issue for purposes of this motion is the question of whether, when accepting Defendants' invitation to "Compare to the Ingredients of Zantrex-3," consumers cannot avoid the conclusion that the two products' ingredients (and thereby, the products themselves) are the same.
ANALYSIS
Legal Standard
On a party's motion for preliminary injunction, a court may grant injunctive relief when "(1) the movant will suffer irreparable harm unless the injunction issues; (2) there is a substantial likelihood the movant will ultimately prevail on the merits; (3) the threatened injury to the movant outweighs any harm the proposed injunction may cause the opposing party; and (4) the injunction would not be contrary to the public interest." Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998) (citation omitted).
A number of courts recognize a presumption of irreparable harm where the movant has satisfied the merits prong by showing a "substantial likelihood of success on the merits" of a literal falsity claim.See, e.g. SmithKline Beecham Consumer Healthcare. L.P. v. Johnson Johnson-Merck Consumer Pharm., 2001 WL 588846, at *6 (S.D.N.Y. 2001) (citing Castrol. Inc. v. Quaker State Co., 977 F.2d 57, 62 (2d Cir. 1992)); Glaxo Warner-Lambert OTC G.P. v. Johnson Johnson-Merck Consumer Pharmaceuticals Co., 935 F. Supp. 327, 328 (S.D.N.Y. 1996): see also Hutchinson v. Pfeil, 211 F.3d 515, 522 (10th Cir. 2000) (noting that "presumption of injury" applies to analysis of merits of Lanham Act claim, and to "irreparable harm as a condition to injunctive relief," but not to matters of standing). Ultimately, then, "the balance-of-the-hardship question is intertwined with questions about the merits. . . ." Scotts Co. v. United Industries Corp., 315 F.3d 264, 272 (4th Cir. 2002).
The Tenth Circuit has specified three disfavored types of preliminary injunctions requiring that a movant show that these four factors "weigh heavily and compellingly in movant's favor . . .: (1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits." SCFC ILC, Inc. v. Visa USA. Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991). The VISA court further held that "[t]he status quo is not defined by the parties [sic] existing legal rights; it is defined by the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights." Id. at 1100 (emphasis in original). Here, where Zoller asks the court to order re-labeling (at least) and/or recall (at most) of the entire ZN-3 product, it unquestionably requests relief that would alter the parties' relationship and relative status within that relationship. Accordingly, Zoller must show that the four preliminary injunction factors "weigh heavily and compellingly" in its favor. For the reasons that follow, the court finds that Zoller has not met this burden. Discussion
Zoller challenges Defendants' use of the "compare to" statement on the grounds that "[c]onsumers will be misled into buying ZN-3, believing it is the cheaper generic equivalent of Zantrex-3. . . ." (Pl's Mem. Supp. Mot. Prelim. Inj. at 7.) Zoller further argues that once the consumer tries ZN-3 and "does not experience the weight loss and energy boost that Zantrex-3 provides," the branding of Zantrex-3 will be "tainted in the marketplace," making consumers "less likely to purchase Zantrex-3. (Id. at 17.) Accordingly, Zoller asks the court to prohibit Defendants' use of the "compare to" statement in its ZN-3 advertisements.
(A) Likelihood of the Success on the Merits
To prevail on a Lanham Act claim of unfair competition and false advertising under 15 U.S.C.A. § 1125, a plaintiff must establish that:
The analysis that follows reflects Zoller's exclusive focus on its Lanham Act claim. As far as its other claims, Zoller asserts without argument that its Utah common law Unfair Competition claim and claim for violation of the Utah Unfair Practices Act, "Utah Code Ann. § 13-15-1, et seq., are substantially likely to prevail on their merits upon the same reasoning supporting the Lanham Act claim. (PL's Mem. Supp. Mot. Prelim. Inj. at 26.)
(1) the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another's product; (2) the misrepresentation is material, in that it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.Scotts Co. v. United Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002) (citing Cashmere Camel Hair Mfrs. Inst. v Saks Fifth Ave., 284 F.3d 302, 310-11 (1st Cir.), cert. denied, 537 U.S. 1001 (2002); (other citations omitted)). The parties' arguments focus primarily on the first element (falsity) and third element (deception or tendency to deceive). It is well-established that where a plaintiff has made a showing ofliteral falsity, "a violation may be established without evidence of consumer deception." Scotts Co., 315 F.3d at 273 (citing Cashmere Camel Hair Mfrs., 284 F.3d at 311;Novartis Consumer Health. Inc. v. Johnson Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002); C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare. L.P., 131 F.3d 430, 434 (4th Cir. 1997)). Extrinsic evidence of a tendency to deceive consumers is required where "a plaintiff's theory of recovery is premised upon a claim of implied falsehood." Id. (emphasis added) (quoting Johnson Johnson-Merck Pharm. Co. v. SmithKline Beecham Corp., 960 F.2d 294, 297 (2d Cir. 1992); Abbott Labs v. Mead Johnson Co., 971 F.2d 6, 14 (7th Cir. 1992)). Such extrinsic evidence usually comes before the courts in the form of consumer survey data. Scotts Co., 315 F.3d at 276 (citingClorox Co. Puerto Rico v. Proctor Gamble Commercial Co., 228 F.3d 24, 36 (1st Cir. 2000)). Here, Zoller makes no claim of having consumer surveys or any other extrinsic evidence of implied falsity. Rather, Zoller explicitly limits its Lanham Act claim to a theory of literal or facial falsity.
In this case, the parties do not dispute the fourth element (placement of the statement in interstate commerce). Implicitly, they do dispute the fifth element (plaintiff's injury). Furthermore, without extensive argument, the parties dispute the second element (materiality). A representation is "material" where it is likely to influence a consumer's purchasing decision. See Utah Med. Prods., Inc. v. Clinical Innovations Assoc.'s. Inc., 79 F. Supp.2d 1290, 1310 (D. Utah 1999). But to the extent that advertising claims are found to be literally or facially false, they will also be found to be material.Energy Four. Inc. v. Dornier Medical Systems. Inc., 765 F. Supp. 724, 731 (N.D. Ga. 1991) (citing PBX Enterprises. Inc. v. Audiofidelity Enterprises. Inc., 818 F.2d 266, 272 (2d Cir. 1987)). Finding materiality is therefore dependent upon finding falsity, required by the first element.
More specifically, Zoller claims that Defendants' statement "Compare to Ingredients of Zantrex-3" is "literally false by necessary implication." The circuit courts have recognized that "[a] literally false message may be either explicit or conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated." Scotts Co., 315 F.3d at 274 (citation omitted). But courts emphasize that "only an unambiguous message can be literally false." Novartis Consumer Health. Inc., 290 F.3d at 587 (emphasis in original).
In determining whether an advertising statement is facially false, a court is to view the statement "in its entirety," in context, viewed from the perspective of "the relevant consuming public," but applying the court's own understanding of the obvious. Cuisinarts. Inc. v. Robot-Coupe Int'l Corp., 509 F. Supp. 1036, 1043 (S.D.N.Y. 1981); Cuisinarts. Inc. v. Robot-Coupe Int'l Corp., 1982 WL 121559, at *2 (S.D.N.Y. June 9, 1982); Utah Medical Products. Inc., 79 F. Supp.2d at 1309.
Recently, in reviewing the case law addressing the "literally false by necessary implication" doctrine, the Third Circuit Court of Appeals remarked that "[t]he common theme in these cases is a finding, based on a facial analysis of the product name or advertising, that the consumer will unavoidably receive a false message from the product's name or advertising." Novartis Consumer Health. Inc., 290 F.3d at 587. For example, in Castrol v. Pennzoil Co., defendants' advertising included two statements, one having to do with the effect of viscosity breakdown on engine failure, and one claiming that Pennzoil outperformed any other leading motor oil in preventing viscosity breakdown. 987 F.2d 939, 947 (3d Cir. 1993). The circuit court, affirming the lower court's permanent injunction of Pennzoil's use of these advertisements, found that the necessary implication drawn from these two statements (taken together) was that "Pennzoil outperforms the other leading brands with respect to protecting against engine failure, because it outperforms them in protecting against viscosity breakdown, the cause of engine failure," a statement of superiority that was false.Id. at 947-98.
Likewise, in Cuisinarts. Inc. v. Robot-Coupe Int'l Corp., the district court considered the following advertisement by Robot-Coupe:
Robot-Coupe: 21, Cuisinart: O. WHEN ALL 21 OF THE THREE-STAR RESTAURANTS IN FRANCE'S MICHELIN GUIDE CHOOSE THE SAME PROFESSIONAL MODEL FOOD PROCESSOR, SOMEBODY KNOWS THE SCORE-SHOULDN'T YOU?
1982 WL 121559, at *2 (S.D.N.Y. June 9, 1982). The district court inCuisinarts found this statement was false, and enjoined its use, because it necessarily implied that Robot-Coupe's professional model food processor was superior to Cuisinarts' professional model food processor, when Cuisinarts did not in fact make such a product.Id. at *2-*3.
In Upjohn Co. v. Riahom Corp., the court found that where a product (patented, if at all, in Italy) proclaimed to be "patented," the unavoidable implication to be drawn by the American public (to whom the product was targeted) was that it was patented in the United States. 641 F. Supp. 1209, 1223 (D. Del. 1986).
Finally, in Novartis Consumer Health. Inc. itself, the Third Circuit affirmed the district court's holding that "the product name Mylanta `Nite Time Strength'" necessarily conveyed "the unambiguous [false] message that the product is specially formulated to relieve nighttime heartburn." 290 F.3d at 589.
The statement at issue in this case, "Compare to Ingredients of Zantrex-3," is distinguishable from these cases in terms of the "unavoidability" of the allegedly false message Zoller claims is conveyed. Zoller argues that the statement, taken within the context of the labeling of the ZN-3 product, conveys the message that ZN-3 is "a less expensive generic equivalent of Zantrex-3." (Pl's Mem. Supp. Mot. Prelim. Inj. at 21.) If consumers accept Defendants' invitation to "compare" ZN-3's ingredients with those of Zantrex-3, Zoller argues, those consumers can reach only one conclusion: "that these products are the same, except that ZN-3 is cheaper." (Pl.'s Mem. Supp. Mot. Prelim. Inj. at 23.) Defendants, on the other hand, emphasize potential ambiguity in the language, "Compare to Ingredients of Zantrex-3," arguing that "[a]n equally plausible (indeed, much more plausible) implication of the comparative phrase is, "Contains Nature's Bounty's own proprietary blend of THE SAME THIRTEEN KEY INGREDIENTS in Zantrex-3." (Def.'s Mem. Opp. Mot. Prelim. Inj. at 23.) The court agrees that Defendants' reading of the message is plausible, suggesting the ambiguity of Zoller's reading.
Defendants contend that the "compare to" language "does not purport to convey any factual information, true or false." (Def s Mem. Opp. Mot. Prelim. Inj. at 18.) But such an observation does not resolve the questions that arise here, given the court's responsibility to look at the advertisement-here, the labeling or point of purchase displays — as a whole, with attention to matters of context.
Indeed, when consumers compare the two labels, they do find that the thirteen ingredients in each product's "proprietary blend" are nearly identical, despite small differences in naming and descriptions. To that extent, Defendants' proposed reading of the "compare to" language is entirely truthful. Furthermore, the idea that the two products are precisely the same (rather than "similar") is undercut by differences that can be ascertained when a consumer looks to the two products' labels in comparison. As discussed above, the Zantrex-3 and ZN-3 contain different quantities of Niacin and different "other ingredients" (aside from the ingredients contained in the "proprietary blend"). More importantly, the two products list different dosage recommendations, and are accordingly to be used differently. It is true that these apparent differences do not reflect the more significant difference (asserted by Zoller) that is not discernible, given the absence of information about quantity amounts: specifically, that a serving of ZN-3, according to Zoller, contains considerably less of the three actual weight loss components (Yerba Mate, Guarana and Damiana, or "YGD") than a serving of Zantrex-3. But even if the ingredient amounts per serving were in fact listed on the two labels, it is uncertain whether consumers would (without reference to outside studies or reviews) recognize the significance of the different quantities of YGD in assessing the similarity or difference of the products. In short, the slightly different ingredients and appreciably different dosage recommendations, all apparent on the face of the two labels, cast doubt on Zoller's argument that the only meaning to be derived from "Compare to Ingredients of Zantrex-3" is that the ingredients (and thereby the products) are identical.
According to Zoller, where Zantrex-3 contains 729 mgs of the YGD component in each serving, a serving ZN-3 contains only 656 mgtotal, including the YGD and all other ingredients.
Moreover, the fact that consumers must themselves play such a critical role in bringing about the "less expensive generic equivalent" conclusion itself undermines the "literal falsity" argument. According to the Third Circuit,
[t]he greater the degree to which a message relies upon the viewer or consumer to integrate its components and draw the apparent conclusion . . ., the less likely it is that a finding of literal falsity will be supported.Novartis Consumer Health. Inc., 290 F.3d at 587 (quotingUnited Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1181 (8th Cir. 1998)); see also, Scotts Co., 315 F.3d at 274 (observing that "the sheer complexity of Scotts' explanation as to why this case involves a literal falsity seems to undercut the argument.") According to Zoller, a consumer must necessarily place a bottle of Zantrex-3 and a bottle of ZN-3 side-by-side, note the prices of each, carefully compare each of the "proprietary blend" ingredients, disregard differences in "other ingredients," Niacin amounts, and dosage, then draw the conclusion that the two products are identical (particularly in terms of the ingredients comprising the weight loss components of the products). This fairly painstaking process required of consumers suggests the message is not literally false, but is instead ambiguous.
Additionally, even had ZN-3's message contained an explicit statement that ZN-3 is "the less expensive generic equivalent of Zantrex-3," there is no assurance that such a message would be considered "literally false." See Sally Beauty Co., Inc. v. Beautvco, Inc., 304 F.3d 964, 980-81 (10th Cir. 2002) (affirming grant of summary judgement to defendants where plaintiffs failed to present evidence that defendant's use of the words "generic version of on the packaging constituted false advertising). For instance, one district court has held that words like "replica," "copy," and "simulation" are not literally false because they "refer to varying degrees of similarity," and such "ambiguity precludes a finding of literal falsity." Pebble Beach Co. v. Tour 18 Ltd., 942 F. Supp. 1513, 1562 (S.D. Tex. 1996).
In light of the above analysis, Zoller has failed to show that the law weighs "heavily and compellingly" in its favor on the question of falsity, which it must do to satisfy the "merits" prong of the preliminary injunction standard. SCFC ILC. Inc. v. Visa USA. Inc., 936 F.2d at 1098-99.
(B) Irreparable Harm
Because Zoller has not demonstrated a substantial likelihood of success on the merits of its literal falsity claim, it also is not entitled to a presumption that it has suffered irreparable harm. See, e.g. SmithKline, 2001 WL 588846, at *6 (citing Castrol Inc. v. Quaker State Co., 977 F.2d 57, 62 (2d Cir. 1992)); Glaxo Warner-Lambert OTC G.P., 935 F. Supp. at 328; Hutchinson, 211 F.3d at 522. Absent this presumption, the court finds that Zoller has failed to provide sufficient evidence of specific irreparable injury. Zoller argues that ZN-3's advertising poses an immediate threat of dilution of Zoller's goodwill and reputation. It is true that dilution of goodwill and reputation can be considered "irreparable harm" for purposes of the preliminary injunction analysis. See Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir. 1990); Systems Concepts, Inc. v. Dixon, 669 P.2d 421, 428 (Utah 1983). The court further recognizes that Zoller has alleged that its losses in this regard "will be impossible to calculate." Nonetheless, Zoller has provided no evidence, indeed not even any developed argument, that Defendants' use of the language "Compare to Ingredients of Zantrex-3" causes consumers to conclude that Zantrex-3 is ineffective, in turn causing "the branding of Zantrex-3 to be tainted in the marketplace and consumers [to be] less likely to purchase Zantrex-3." (Pl.'s Mem. Supp. Mot. Prelim. Inj. at 17.) Accordingly, Zoller has failed to show that the element weighs "heavily and compellingly" in its favor.
Moreover, as Defendants point out, Zoller's claims that Zantrex-3 will be sold in Wal — Mart in the near future finds no support in the record at this point.
(C) Balancing of Hardships
Even if Zoller had shown compellingly a threat of irreparable injury to its goodwill and reputation, it has not show that such injury outweighs the harm Defendants will suffer should the court grant their motion for preliminary injunction. In contrast to Zoller's unspecified claims of damage to goodwill and reputation, Defendants argue, with supporting affidavit testimony, that the costs of repacking the 43,000+ bottles of ZN-3 currently in inventory would be approximately $90,000; that it would cost approximately $6,000 to reprint 49,000+ ZN-3 labels that have been printed but not yet used; and that the cost of recalling and repacking the bottles of ZN-3 currently on retail store shelves would exceed $1.9 million. (Def.'s Mem. Opp. Mot. Prelim. Inj. at 13-14, 29; Declaration of Albert Anastasi ("Anastasi Decl.") at ¶ 14.) Furthermore, Albert Anastasi, President of the Wholesale Division of NBTY, Inc., has testified by affidavit as follows: "I also fear, based on my extensive experience selling products to retail customers such as Wal-Mart and others, that any order requiring NBTY and Nature's Bounty to recall or relabel the Xtreme Lean ZN-3 bottles that are currently on retail store shelves would irreparably damage our relationships with our retail customers and destroy any future sales opportunities for our Xtreme Lean ZN-3 product." (Anastasi Decl. at ¶ 11.) Given that Zoller has not successfully shown the "compare statement" to be false, Zoller's anticipated harms are vague and speculative as compared with Defendants' more fully developed, documented potential harms. The balance of harms clearly weighs in Defendants' favor.
Zoller claims only that it "has spent millions of dollar developing, marketing, promoting Zantrex-3. As a result, Zantrex-3 enjoys a strong reputation with consumers that it really produces the stated effects: weight loss and energy." (PL's Mem. Supp. Mot. Prelim. Inj. at 27.)
(D) Public Interest
Finally, Zoller must show that injunctive relief would not be contrary to the public interest. Zoller argues that, given the Lanham Act's purpose in "protect[ing] consumers from false and deceptive advertising," the public interest is served by upholding this purpose. Church Dwight Co., Inc. v. S.C. Johnson Son. Inc., 873 F. Supp. 893, 912 (D.N.J. 1994) (citing 15 U.S.C. § 1125(a)). But where, as here, a plaintiff has failed to demonstrate such falsity or deception, "the court does not believe that the public interest demands preliminary injunctive relief." Prime Media. Inc. v. Primedia, Inc., 33 F. Supp.2d 932, 941 (D. Kan. 1998) (citation omitted). Rather, the court recognizes the public interest in comparative advertising, and the potential harm to such an interest that injunctive relief could cause in this case. See August Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 618 (7th Cir. 1995) (citations omitted) (In the trademark infringement context, use of a rival's mark in advertising, when in does not "engender confusion about origin or quality . . . is beneficial to consumers. They learn at a glance what kind of product is for sale and how it differs from a known benchmark.") Again, Zoller has not shown that the public interest favors its position, particularly not "compellingly and heavily."
CONCLUSION
Because Zoller has not demonstrated that the four preliminary injunction elements weigh "heavily and compellingly" in its favor, the Motion for Preliminary Injunction is DENIED.
SO ORDERED.