Alcon Files Two Lawsuits Tied to Trademark Infringement by Distributors

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FORT WORTH, Texas—Alcon in January filed two trademark infringement lawsuits in Eastern District of New York federal court that relate to new packaging the company launched for its Dailies AquaComfortPlus lenses. The suits also cite distribution issues with the company’s O2 Optix lens products, which are no longer distributed in the U.S. market, according to the lawsuits. The defendant in one of the suits is the online retailer Lens.com, and a second similar lawsuit was filed against Allied Vision Group and National Lens LLC,: which are “sister” companies, according to an executive at Allied Vision Group. Hammond, Kennedy, Whitney & Company Inc. (HKW), a private equity firm, acquired Allied Vision Group, an independent distributor of contact lenses, in September 2017, as VMAIL reported

In its lawsuits, Alcon says that the defendant companies have continued to sell Dailies AquaComfortPlus contact lenses in the discontinued packaging even after it notified distributors of the new packaging and offered to “exchange any remaining products in their inventory for products in the new Dailies AquaComfortPlus packaging,” according to the lawsuits.

Alcon said it introduced the new product packaging for Dailies AquaComfortPlus sold in the U.S. in May 2017. The new packaging included “several new patient-friendly educational elements, including (i) readily accessible detailed insertion and removal instructions, and (ii) a toll-free patient helpline and email address to permit patients to contact Alcon directly with questions,” according to the lawsuits.

“Defendants’ unauthorized use of the registered Alcon Contact Lens Marks as alleged … is likely to cause confusion, mistake or deception on the part of consumers as to the source, nature and quality of the goods,” the lawsuits state, which Alcon said constitutes trademark infringement. “As a direct and proximate result of defendants’ wrongful conduct, Alcon has been, is now and will continue to be irreparably injured and damaged by defendants’ aforementioned acts, and unless Defendants are enjoined by the Court, Alcon will suffer further harm to its name, reputation, and goodwill,” the suits state.

However, Allied Vision’s Harvey Berkowitz, who became chief executive officer last year upon closing of the private equity deal, told VMAIL on Thursday the Alcon lawsuit “is, first and foremost, without merit.”

He added, “We will be totally vindicated.” Berkowitz, who said he has been in the optical business for 25 years, said “everything we sell” to ECPs is a legitimate product and FDA approved. “We’re purely a wholesaler and have no retail contacts,” he said. “They never notified us we could exchange product.”

Lens.com president and chief executive officer Cary Samourkachian told VMAIL that the Nevada-based retailer “will vigorously defend our rights if we are unable to resolve this matter with Alcon.”

In the lawsuits, Alcon also said it stopped distributing O2 Optix products in the U.S. in 2013, and now distributes O2 Optix products “only in certain countries outside of the United States.”