CreAgri, Inc. v. USANA Health Sciences, Inc.

In a contest involving competing products claiming trademark priority, the district court determined, in order to acquire priority, a “use in commerce” means a lawful use — here, a use compliant with federal labeling requirements. We agree.

BACKGROUND

In the spring of 2001, Appellant CreAg-ri, Inc. (“CreAgri”) began selling Olivenol, a dietary supplement containing an apparently beneficial antioxidant found in olives called hydroxytyrosol. At the time, Oli-venol’s label indicated that each tablet contained 25mg of hydroxytyrosol, the product’s primary active ingredient. Although the scientist who developed Olivenol claimed no standardized method to accurately measure a substance’s hydroxytyro-sol content was yet available, neither he nor CreAgri applied for an exemption from the Food, Drug, and Cosmetic Act’s (“FDCA”) labeling requirements due to this technological limitation, apparently content with the results of CreAgri’s own testing and the testing done by two outside companies selected and paid for by CreAg-ri.

One year later, however, Olivenol’s label had changed. It had been brought to CreAgri’s attention that its 25mg hydroxy-tyrosol measurement might be in error; thus,…