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OXYCAL LABS., INC. v. JEFFERS

December 4, 1995

OXYCAL LABORATORIES, INC., an Arizona Corporation, and INTER-CAL CORPORATION, an Arizona Corporation, Plaintiffs,
v.
JIM JEFFERS and LOU B. JEFFERS, dba Quest for the Best; JOHN A. PERKINS, dba Promotion Publishing; and HULDA C. CLARK; Defendant.



The opinion of the court was delivered by: RHOADES

 This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction. For the reasons stated below, Plaintiffs' Motion is DENIED.

 I. Background

 Plaintiffs Oxycal Laboratories, Inc. and Inter-Cal Corporation, (collectively "Oxycal") are manufacturers and suppliers of vitamin C products. Oxycal's patented products are sold under the federally registered trademark ESTER-C. Plaintiffs claim that the tradename ESTER-C is a leading product in the vitamin C market, and that Oxycal has built up valuable "significant commercial goodwill" in the good name of the ESTER-C product line.

 Hulda A. Clark ("Clark") is the author of a book entitled The Cure for All Cancers ("Clark's Book"). John A. Perkins, doing business as "ProMotion Publishing," is the publisher of the Book, and is engaged in promoting its sale. Jim Jeffers and Lou Jeffers (collectively, "the Jeffers") are principals of, and doing business as, Quest for the Best. Plaintiffs allege that the Jeffers actively promote the sale of the Book as a vehicle for increasing sales of some of their products which are recommended in the Book. In July of 1994, Oxycal began receiving reports that consumers were, after reading Clark's Book, becoming concerned that ESTER-C products caused cancer. Oxycal claims that they received a substantial number of calls from "existing customers, potential customers, large clients, existing distributors and even a governmental consumer protection agency" worried about the potential carcinogenic characteristics of ESTER-C. See Declaration of David R. Stenmoe at P 15-20.

 The reason for the concern about the carcinogenic effects of ESTER-C is that Clark's Book alleges that the mineral Thulium contributes to the occurrence of cancer. Furthermore, the Book also alleges that ESTER-C products contain Thulium. See Motion Exhibit A at 18 ("All the ESTER-C varieties of vitamin C that I have tested are polluted with Thulium!"). Clark's Book claims that all cancers can be rid from the human body by eliminating harmful toxins, such as Thulium. The Book provides for activities that can be done to eliminate harmful materials from the body, including avoiding certain foods, avoiding exposure to certain household items, etc. The Book also identifies methods for testing for the presence of certain toxins that should be avoided. In short, the Book provides a comprehensive plan for identifying and removing all causes of cancer.

 After becoming aware that Clark's Book alleged that ESTER-C contains Thulium and that Thulium causes cancer, Oxycal hired a Dr. Jack Hegenauer, PhD., to conduct a study of ESTER-C and Thulium to test the allegations contained in Clark's Book. Dr. Hegenauer concluded that ESTER-C contains no Thulium, and that to date there is no scientific evidence of a causal link between Thulium and cancer. See Dr. Hegenauer Declaration at P 22, 30, 31.

 Concerned that the continued dissemination of false information concerning ESTER-C would irreparably harm the reputation of ESTER-C, result in "millions of dollars of lost sales" and thus cause inestimable damage to the financial health of Oxycal, see Stenmoe Declaration at P 20, Oxycal moved for a preliminary injunction. Oxycal's complaint is based on a violation of the Lanham Act, specifically 15 U.S.C. 1125(a), and the request for a preliminary injunction is made pursuant to a provision of the Lanham Act at 15 U.S.C. § 1116(a).

 II. Discussion

 A. Authority For a Preliminary Injunction

 The Lanham Act gives district courts explicit authority to grant injunctive relief to prevent violation of 15 U.S.C. § 1125(a). Section 1116 of Title 15 provides that "the several courts vested with jurisdiction of civil actions arising under this chapter shall have power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, . . . to prevent a violation under section 1125(a) of this title." The Ninth Circuit has applied the same standard to a request for preliminary injunction under § 1125(a) as that applied to requests for preliminary injunctions in general. See Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir. 1992).

 B. Standard for Granting Preliminary Injunction

 To prevail on a request for preliminary injunctive relief, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 753 (9th Cir. 1982). These formulations are not different tests; they represent two points on a sliding scale in which the showing of irreparable harm must increase as the probability of success on the merits decreases. Odessa Union, 833 F.2d at 174. The Ninth Circuit has indicated that "serious questions" are issues "to which the moving party has a "fair chance of success on the merits." Sierra On-Line v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).

 C. Chance of Success on the Merits

 Under either formulation of the test for a preliminary injunction, the district court must first evaluate the moving parties chance of success on the merits of the claim. Here, the Court finds that Oxycal has little chance of success on the merits of its claim based on violation of § 1125(a). Since Oxycal has little chance of success on the merits, Oxycal cannot meet the requirements for a ...


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