## Facts

- Upjohn developed topical minoxidil as a prescription hair-growth drug (Regaine), investing over $100 million in research and clinical trials and obtaining FDA approval.
- Upjohn’s earlier broad minoxidil patent expired May 7, 1985; the dispute here concerns advertising and competition rather than patent exclusivity.
- Riahom imported a minoxidil-based product, Rivixil, from an Italian source, packaged it in the United States, and sold it primarily through hair salons.
- Riahom treated Rivixil as a cosmetic and did not pursue FDA approval or conduct testing comparable to Upjohn’s clinical program.
- Riahom’s promotional materials stated or implied that Rivixil contained a “clinically tested patented compound,” had patent protection, and was comparable to the widely publicized minoxidil hair-growth product associated with Upjohn.
- Upjohn sued for patent infringement and for false advertising/unfair competition under Lanham Act § 43(a), and moved for a preliminary injunction; preliminary relief on the patent claim was denied, and the court addressed injunctive relief under § 43(a).

## Issues

1. Whether Riahom’s advertising made false or misleading representations of fact in commercial promotion, including claims of patent protection, clinical testing, and hair-growth/regrowth efficacy, actionable under Lanham Act § 43(a).
2. Whether Upjohn satisfied the requirements for a preliminary injunction, including likelihood of success, irreparable harm, balance of hardships, and the public interest.

## Decision

- The court granted a preliminary injunction on Upjohn’s Lanham Act § 43(a) false advertising/unfair competition theory.
- The court found Riahom’s patent-related representations were literally false because no patent had issued for the claimed formulation; at most, applications existed.
- The court found the “clinically tested” message and implied equivalence to Upjohn’s product were materially misleading given the absence of comparable clinical testing and regulatory scrutiny.
- The court treated Rivixil’s hair-growth/regrowth claims as misleading because they were not supported by adequate, reliable clinical testing.
- The injunction barred defendants from marketing Rivixil using the challenged claims regarding patent status, clinical testing, and hair-growth efficacy.
- The ruling did not grant preliminary relief on the patent infringement claim; the § 43(a) relief rested on the content and effect of the advertising.

## Legal Principles

- Lanham Act § 43(a) prohibits commercial advertising that makes false or misleading representations of fact likely to influence purchasing decisions and cause competitive or consumer harm.
- Liability may rest on statements that are literally false or statements that are misleading in context based on the net impression conveyed to consumers.
- For preliminary injunctive relief, the movant must show likelihood of success on the merits, irreparable harm absent an injunction, that the balance of hardships favors relief, and that relief serves the public interest.
- In false advertising disputes between competitors, injury to goodwill and reputation from misleading product claims can constitute irreparable harm not readily cured by money damages.
- Enjoining deceptive claims generally imposes a limited hardship on the advertiser because it may continue marketing using accurate, non-misleading descriptions.

## Conclusion

The court preliminarily enjoined Riahom from promoting Rivixil with false and misleading claims that it was patented, clinically tested, and effective for hair growth, holding that Upjohn showed a strong likelihood of success under Lanham Act § 43(a), irreparable injury to goodwill, favorable equities, and a public interest in truthful advertising for health-related products.


Upjohn Co. v. Riahom Corp., 641 F. Supp. 1209 (D. Del. 1986)