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Pennywise Cosmetics has been prohibited by a Judge from selling the ZO Skin Health brand of medical-grade skincare products in its ten (10) retail stores across the country. Pennywise is one of the largest retail chains in the Caribbean, which specializes in health and beauty products. ZO Skin Health is manufactured in the United States.
The order was made on Friday (12th April, 2024) by Justice Joan Charles, who granted an injunction to the Maraval-based dermatology clinic, Skin Health Institute (SHI), led by Dr. Rachel Eckel, who has used the ZO Skin Health brand at her clinic for the past seven (7) years. In an application for the injunction, Dr. Eckel and SHI maintained that the ZO product line was medical-grade and was intended to be physician-controlled only, so the products could only be sold through physician-dispensed channels. The injunction application contended that in August 2023, the claimants — SHI, Dr. Eckel and Barbados-based Dermedica Medical Limited, the exclusive distributor of the ZO product line in the Caribbean — discovered that Pennywise began selling twenty (20) items from the ZO product line. “Pennywise is neither a ZO subsidiary, sales agent partner nor a ZO distribution partner…” It also contended that Pennywise purported to have permission to sell the products when it was not authorized to do so. The three (3) claimants have alleged Pennywise engaged in unfair competition, “passing off” the product, misrepresenting its association with the products and engaging in “deception” by its advertising of the ZO products while telling its customers they could get a prescription from Dr. Eckel or get advice from her and SHI. Dr. Eckel and SHI further contended that Pennywise’s actions, in linking itself to them, were “an overt act intended to make a connection…and thereby cause damage to the claimants’ sales and reputation.” Pennywise’s Attorneys, however, argued that the company had breached no law and had always engaged in honest business practices. They also pointed out that ZO products were available, without a prescription, from international retail sources such as Walmart, Amazon and eBay. Pennywise’s defence said the company had no interest in being associated with SHI or Dr. Eckel as it had its own independent, well-established reputation while also accusing both of attempting to “obtain a monopoly” over the local sale of ZO products. This, the local retail chain said, was contrary to the spirit and tenor of the Protection Against Unfair Competition Act. Their Attorneys also pointed out that the ZO product labels show that physician supervision is not mandatory for persons using the ZO products, while accusing the claimants of setting out to “create fear and hysteria. Additionally, the importation of the products was not flagged by any Government agency as being illegal and/or unlawful.” In her ruling, Justice Charles said it was not in dispute that the ZO line of products was introduced by SHI and Eckel in 2016. She said from the evidence presented, it showed that Pennywise’s employees were relying on the reputation and goodwill of SHI to sell the products and there were “false statements” as being the exclusive distributor. “The advertisements, signage and statements combined to create a false impression to the public and were likely to deceive customers into believing that Pennywise had collaborated with the claimants in providing the products for sale and that it was the sole distributor of said products. I, therefore, hold that there is evidence of an intention to deceive the public which could likely lead to the public being deceived.” She further stated, “The issue regarding the authenticity of the products on sale by the defendant is one for trial, but at this stage, it is clear that they did not have exclusive rights to sell the products neither were they sourced from the manufacturer as the claimants’ products were.” According to the Judge, SHI and Dr. Eckel stood “to lose more” on sales if Pennywise was allowed to continue to sell the ZO product line until trial. Pennywise was therefore prohibited from passing off ZO Skin Health products until the trial, could not sell the line at its stores, and had to remove all the products from the line from its shelves, as well as all advertising material and social media posts. Pennywise had previously agreed to remove the line from its shelves in October 2023, until the Judge gave her decision on the injunction application. The ZO line of products was invented by Dr. Zein Obagi, a Pathologist and Dermatologist with forty (40) years of clinical experience. SHI, Dr. Eckel and Dermedica Medical Limited were represented by Attorneys Terrence Bharath, SC, Shiv Sharma and Daniella Bharath, while Pennywise was represented by Larry Lalla, SC, Vivek Lakhan-Joseph and Taruna Mangroo. More on this as it becomes available. [Source: Newsday] We are a small operation. If you've found our articles to be informative, please consider supporting us via PayPal or buying us a coffee. Your contribution is incredibly appreciated and goes a long way. Simply sharing our articles also helps us. Sign up for our free WhatsApp Alerts to be notified as soon as we post breaking news. NEW! Check out our Merchandise Store for high-quality t-shirts, hats and more!
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