By:David Gabor

On December 30, 2013, the Federal Court of Appeals, in Allergan, Inc. v. Athena Cosmetics, Inc., et al., an as-yet unpublished decision, affirmed a California District Court ruling that has the potential significantly to affect advertising law and the use of the California unfair competition statute at B&P Code §17200, et seq. to regulate commerce. http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1286.Opinion.12-26-2013.1.PDF In that case, the Federal Circuit affirmed that a California unfair competition claim is limited in injunctive effect to California only.

The key facts are as follows. Amgen, the manufacturer of Latisse eyelash thickener, sued Athena for its competing RevitaLash product, by asserting a number of federal patent and California Section 17200 unfair competition claims. The issue was whether RevitaLash could be marketed as a medical product that would grow and lengthen eyelashes.  Amgen sued because its own brand is the only product presently approved by the FDA to grow eyelashes.

Continue Reading The Long Lashes of the Law: The Federal Circuit Rejects Nation-wide Application of An Injunction Based on California Unfair Competition Statutes