According to LAW360's report on June 1st, VPR Brands LP, a US e-cigarette company, is seeking to maintain the ban on the sale of ELFBAR and has requested the Federal Circuit Court to uphold the injunction, stating that their product is not intended for nicotine consumption and is not regulated by the FDA.
Chinese e-cigarette manufacturer, iMiracle, has filed an application with the United States Circuit Court to overturn the ban on selling products under the name "ELFBAR." They claim that this ban has resulted in losses of millions of dollars.
2FIRST interviewed ELFBAR regarding the issue. The spokesperson for ELFBAR stated that they are currently in the process of appealing, and there is no definitive ruling yet. The spokesperson further mentioned that VPR has a history of malicious litigation for profit using trademark loopholes, which they consider as a "rogue behavior." The spokesperson also pointed out that VPR's blatant imitation of ELFBAR products further exposes the suspicious motives behind their trademark litigation.
It is understood that VPR filed an appeal in October last year, claiming that ELFBAR infringed upon their "ELF" trademark. The court issued a preliminary injunction against ELFBAR in February of this year, prohibiting the use of the "ELFBAR" trademark in the United States. In May, ELFBAR discovered that VPR was engaging in commercial activities using counterfeit "ELFBAR" products in the US, leading them to bring the matter before the court.
ELFBAR has previously asserted that VPR's ELF e-cigarettes have been "illegally" sold from the beginning since the Florida-based company never obtained FDA approval for market sales.
However, in their appeal, VPR stated that ELFBAR cannot prove that VPR's ELF products are clearly illegal because only the FDA can make such determinations.
VPR claims that their ELF brand products have never been subject to FDA regulation or legal action. Furthermore, VPR states that the ELF devices are neither sold nor intended for nicotine consumption, unlike ELFBAR products that come pre-filled with "nicotine e-liquids with candy and fruit flavors."
After losing the trademark case, the "ELFBAR" brand name and appearance were counterfeited in the US. ELFBAR responded that they would take legal measures.
Based on the information obtained at the e-cigarette exhibition in the US by 2FIRST, VPR's ELF devices contain nicotine e-liquids and are disposable e-cigarettes with a striking resemblance to ELFBAR. Additionally, ELF also uses the name "ELFBAR."
VPR believes that ELFBAR relies on expert opinions to claim that VPR's products violate FDA regulations, which they consider an incorrect legal conclusion, which the court cannot accept. VPR argues that the district court correctly mistrusted the legal conclusion of the expert.
The case is awaiting a decision from the Federal Circuit Court, but there are still some pending motions from both parties.
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