Eli Lilly and Company and Elanco US, Inc. v. Arla Foods, Inc. and Arla Foods Production LLC

Summary

The Seventh Circuit affirmed a preliminary injunction under the Lanham Act, holding that consumer surveys or other "hard" evidence of actual consumer confusion are not required at the preliminary injunction stage; the court may rely on the ads themselves, regulatory guidance, and evidence of decreased demand to find a likelihood of success on a misleading-advertising claim. The court also held that causation was sufficiently shown because the plaintiff manufactured the only FDA-approved rbST supplement, making harm easily traceable, and that the modified injunction was not vague or overbroad, as it adequately described the prohibited conduct. The case addresses false advertising concerning recombinant bovine somatotropin (rbST) in dairy products and the standards for preliminary injunctive relief under the Lanham Act.

Holdings

1. Consumer surveys or other 'hard' evidence of actual consumer confusion are unnecessary at the preliminary-injunction stage.
2. The evidence of causation is sufficient at this stage because the harm is easily traced: Elanco manufactures the only FDA-approved rbST supplement, and there was evidence that a major cheese producer decreased its demand for rbST in response to the ad campaign.
3. The modified injunction is sufficiently definite and adequately supported by the record and the judge's findings. The 'substantially similar' language is permissible, and the factual findings are adequate.

Questions Presented

1. Whether consumer surveys or other hard evidence of actual consumer confusion are required at the preliminary injunction stage in a Lanham Act false advertising case.
2. Whether Elanco provided sufficient evidence of causation linking the ad campaign to decreased demand for its rbST supplement.
3. Whether the modified injunction is vague and overbroad.
4. Whether the modified injunction lacks adequate factual findings.

Disposition

affirmed