Avacen has been denied a requested TRO against NuLife Ventures.
The ruling means that, at least for the foreseeable future, NuLife Ventures will retain exclusive rights to market Avacen’s products.
Avacen’s requested TRO was part of their lawsuit against NuLife Ventures.
The medical device manufacturer alleges breach of a reseller agreement, and seeks to prohibit NuLife Ventures from continuing to offer Avacen’s products.
In his ruling, Judge Hayes sided with NuLife Ventures with respect to jurisdiction.
AVACEN has failed to present evidence sufficient for the Court to conclude that this is the “exceptional case” where NuLife would be subject to general jurisdiction in California.
AVACEN has failed to present evidence that NuLife has “continuous and systematic” contacts with California to meet the “exacting standard” necessary to establish general jurisdiction.
The court additionally found that
The alleged harm to AVACEN’s “revenue stream,” the alleged harm to the “value” of the Medical Devices, and the alleged “serious financial harm” could be compensated with money damages and is not “irreparable.”
To demonstrate a likelihood of irreparable harm to AVACEN’s trade name, reputation, and goodwill from the NuLife’s marketing and selling of AVACEN products, AVACEN must establish that, without the requested TRO, it is likely that AVACEN will be unable to attract new quality distributors and salespeople, that the quality of AVACEN Medical Devices will be negatively impacted, or that customers will be injured or dissatisfied by vNox+ and blame AVACEN.
One of the points of contention Avacen has is NuLife Ventures’ bundling its vNox+ supplement with Avacen’s devices.
Based on the evidence provided, the court concluded;
AVACEN has not presented evidence that NuLife’s offering AVACEN products and vNox+ for sale together or including vNox+ as a free “Reward” with the purchase of an AVACEN Medical Device has led, or is likely to lead, any consumer to assume that AVACEN has approved or endorsed the vNox+ product, or that any AVACEN customer is likely to become injured or dissatisfied with vNox+ and blame AVACEN.
In support of harm to their name, Avacen provided correspondence from NuLife Ventures affiliates claiming they were “bait and switched” by the company.
The alleged bait and switch was with respect to NuLife Ventures being “the exclusive marketing arm for Avacen”.
These communications were acknowledged by the court, but Judge Hayes ruled
evidence that NuLife IBPs are dissatisfied with NuLife does not demonstrate that salespeople or distributors are unlikely to work with AVACEN or that customers are likely to be dissatisfied with AVACEN products.
The Court concludes that AVACEN has failed to meet its burden to demonstrate that it will be irreparably harmed absent a TRO.
Avacen’s requested TRO was denied as per Judge Hayes’ September 3rd order.
If Avacen is to get NuLife Ventures to cease selling their products, they’ll have to pursue the case to settlement or judgment.
Stay tuned for updates as we continue to track the case.
Update 23rd September 2020 – Avacen has dropped its lawsuit against NuLife Ventures.