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  • Writer's pictureShelly Albaum

The Least of Elysium's Concerns

For anyone pondering whether Elysium Health has a fettish for litigation, consider that Elysium is also the plaintiff in another federal lawsuit against another supplements company -- a garden-variety trademark infringement case in the Southern District of New York.

The facts seem straightforward. A small British Columbian health supplements company called "Elysium Sciences" changed its name to "Allysian Sciences."

Elysium says "Allysian" is still too close to "Elysium." Or, in the technical language of trademark litigation, the complaint reads (you can read it yourself):


28. As a result of Allysian’s use of the Allysian Marks or confusingly similar variations thereof, Elysium is being irreparably harmed by the existence, marketing, promotion, offering for sale, and sale of Allysian’s goods and services

29. Allysian’s acts have injured and are likely to injure permanently Elysium’s goodwill and reputation. This risk to Elysium’s goodwill and reputation has the potential to be particularly damaging now, as Elysium is in the process of developing and selling new products. Its goodwill and reputation is crucial to the success of its ongoing endeavor, and therefore to its ability to sell its products to consumers and ultimately to render a successful and profitable business.

30. Thus, Allysian’s unauthorized acts, as described herein, have caused and will continue to cause irreparable damage to Elysium’s business and goodwill, and will deceive innocent unwitting consumers, unless restrained by this Court..."

Ha, ha, ha, ha, ha!

If Elysium is really worried about avoiding irreparable harm to its reputation, I can think of a few additional measures they might take, like next time avoid taking steps like the ones that resulted in a recent citizens complaint to the FDA challenging the safety of Elysium's only product.

To an ignorant bystander like me who knows nothing about this Allysian company or this dispute, it looks like a little British Columbian company named themselves Elysium Sciences, then noticed it was uncomfortably close to Elysium Health, and decided to change their name to Allysian Science to clear any potential trademark challenges. But then Allysian got sued anyway, because Elysium doesn't think it's enough of a change.

Now let's read Allysian's Answer (you can also read it for yourself), which I predict will be full of four-letter words suggesting that the complaint represents overreaching.

[a few minutes later...]

Yeah, that's about it. The key language in the answer is:

"... [Allysian] changed its name from Elysium Sciences Inc. to Allysian Sciences, Inc. on or about December 9, 2014 after learning about Elysium’s trademark application for the ELYSIUM mark..."

Allysian's general argument is what you'd expect: There is no risk of confusion, and Elysium has suffered no harm.

There is, of course, a rich common law on what constitutes confusingly similar, and I am not familiar with that law.

At first blush, this strikes me as Elysium unreasonably bullying a smaller company. I would have thought that there was enough daylight between Allysian and Elysium, even in the same industry, but experts will answer that question for us.

On the other hand, it makes all kinds of sense that Elysium is currently experiencing harm to its business, and I guess that means some of Elysium's customers have bought a competing product.

I would have thought that the flight was to TruNiagen, which is a better version of the same product, instead of of Allysian Genesis, which is a worse version of the same product name. But I don't know anything about the relative sales of the three products.

Perhaps if Allysian adds hand-mirrors to its allegedly infringing product line, Elysium will have a better chance of discovering who is really causing irreparable harm to Elysium's business.

I will grant some similarity in the visual treatment on the two websites, although I am an Elysium customer who certainly would not be confused. Decide for yourself:

Elysium Basis Website:

Elysium Basis Website

Allysian Genesis Website

Allysian Genesis Website

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