The maker of Frontline^® Plus and Heartgard^® veterinary products has again turned to the judicial system to resolve disputes regarding its own advertisements, as well as those of its competitors.

On August 13, 2012, Merial LLC (“Merial”) filed a complaint in the U.S. District Court for the Northern District of Georgia, Atlanta Division, against its competitor, Elanco Animal Health (“Elanco”), a division of Eli Lilly and Company.  The complaint asserts counts for false advertising under § 43(a) of the Lanham Act and related state law claims over Elanco’s advertisements for its product Trifexis^®.   

Additionally, the last count of the complaint asserts a claim for a declaratory judgment, asking the court to render a judgment that Merial’s own advertisements for its Frontline^® Plus and Heartgard^® products “are not false, misleading, or unsubstantiated and that they do not violate Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).”

Merial alleges that Elanco’s ads state or imply that Trifexis^® “is labeled and approved to prevent infection by intestinal parasites, when in fact it is only labeled to treat and control such infections [italics in original].”  Therefore, contends Merial, for Elanco to include the phrase “to protect (dogs / your dog) from parasites” is to engage in false advertising.  Merial additionally alleges that a television commercial for Trifexis^®, which depicts a dog trapped in a “Plexiglass habitrail,” falsely suggests that other products constitute “extreme measures” for protecting dogs from parasites.

Regarding its declaratory judgment count, Merial states that it “seeks to clear its good name and put an end to Elanco’s baseless attacks on Merial’s advertising.”  Merial describes that advertising as comparing: (1) Elanco’s Trifexis^® to Frontline^® Plus and Heartgard^®; and (2) Elanco’s flea product Comfortis^® to Frontline^® Plus.  Merial alleges: “Elanco’s ongoing accusations cast a cloud over Merial’s brands and need to be dealt with by a court of law.”

The case is Merial LLC v. Elanco Animal Health, a division of Eli Lilly and Company, No. 1:12-cv-02801, U.S. District Court for the Northern District of Georgia, Atlanta Division.  The case has been assigned to U.S. District Judge Richard W. Story.

Note:  Merial is also involved in a patent case against a different competitor.  See prior blog entry for details.