NEWS RELEASE
JUNE 2007
(Westfield, NJ)

Contact:
Ray Janeczek
Direct Dial: 908.518.6369 or
rjaneczek@ldlkm.com

A three-judge panel of the United States Court of Appeals for the Third Circuit, based in Philadelphia, has issued a decision in favor of Vertical Pharmaceuticals, Inc., a distributor of prescription vitamin products sold under the trademark CORVITE. The panel affirmed an earlier decision by a federal judge in Newark, New Jersey, who had denied an injunction requested by Everett Laboratories, Inc., which had been asserting trademark infringement relating to Everett's STROVITE products.

In January 2006, U.S. Senior District Judge Dickinson Debevoise had denied Everett's request for a preliminary injunction, holding that Everett had not established a likelihood of success in demonstrating confusing similarity between STROVITE and CORVITE. In a June 13, 2007, opinion by Circuit Judge Marjorie Rendell, the Third Circuit agreed with Judge Debevoise's decision and suggested that Judge Debevoise had not sufficiently appreciated the weakness of Everett's case. The panel's decision expressed the view that Judge Debevoise had "overstated the similarity of the marks," because the common element of the two competing trademarks (STROVITE and CORVITE) was the suffix "-vite," which is a common descriptive term having little independent force or distinctiveness.

While the Third Circuit's decision did not result in dismissal of the suit, Charles Kennedy of Lerner, David, Littenberg, Krumholz & Mentlik, LLP of Westfield, New Jersey, lead counsel for Vertical, suggested that the Third Circuit's decision may lead to the suit being dropped. As Kennedy noted, "We think Everett should think long and hard about pursuing this case in the face of a Third Circuit decision that is extremely negative to Everett's position."

The case is Everett Laboratories, Inc. v. Vertical Pharmaceuticals, Inc., Appeal No. 06-1661 in the U.S. Court of Appeals for the Third Circuit and may be found at 2007 WL 1700688 (C.A. 3 (N.J.)).