In a long-running trademark dispute in the Northern District of Georgia between dietary supplement manufacturers Hi-Tech Pharmaceuticals, Inc. and Dynamic Sports Nutrition LLC, Judge Michael J. Brown issued a mixed evidentiary ruling, finding that the defendants could introduce evidence that the plaintiffs had spiked their supplement with banned anabolic steroids.
The judge explained that the plaintiff brought suit in 2016 over the defendat’s trademark application for “D-Anabol 25,” which the plaintiffs argued was likely to be confused with its mark, “DIANABOL.”
The motions in limine decided in the opinion largely concern whether evidence that the plaintiff “spiked” its supplements with steroids can be introduced. According to the opinion, the defendants retained an expert who found traces of such substances in DIANABOL, and argued that that meant the underlying trademark at issue in the case was obtained by fraud. The court agreed with this argument, finding that whether such spiking occured was relevant to the case. The judge added that the evidence is relevant as to the defendant’s defense of unclean hands, which would prevent the plaintiff from recovering on certain claims due to its potentially misleading behavior.
The plaintiffs were succesful in excluding certain evidence of the plaintiff company and its owner’s “prior crimes and wrongdoings.” The judge described the plaintiff and owner as having a “long and colorful history of civil and criminal litigation,” including criminal charges and a Federal Trade Commission injunction. The plaintiff succesfully excluded this evidence from the case, as they do not meet the standards set by the federal rules of evidence that govern evidence of prior bad acts.
The judge also granted a motion in limine filed by the defendant to exclude the plaintiff’s own product testing evidence, which would be used to “refute Defendants’ claim that Plaintiff intentionally spiked DIANABOL® with steroids.” However, the judge explained that this information was only brought before the court well after the close of discovery and must be excluded.
The plaintiff is represented by the Law Office of Arthur W. Leach and CL Parker. The defendants are represented by Wellborn & Wallace LLC.
