Ocusoft Inc v. Walgreen Co., 4:17-cv-01037

Background

Ocusoft, maker of Ocusoft Lid Scrub eyelid cleanser, sued Walgreens alleging false advertising under the Lanham Act and related state claims; Ocusoft sells its product at Walgreens and alleges Walgreens’ private‑label pads are presented as the same.
Ocusoft sought a temporary restraining order (TRO) and preliminary injunction alleging (1) store employees told customers the products were the same/made by the same manufacturer, (2) a store displayed an incorrect compare‑and‑save tag overstating savings, and (3) online listings showed a 2015 Walgreens product image while customers received a 2016 formula.
Walgreens denied systemic wrongdoing, stated instances were isolated and largely involved Ocusoft’s investigators, and said less than 1% of private‑label eyelid pad sales occur online.
Walgreens implemented corrective measures: replaced the incorrect price tag, sent company‑wide guidance to managers to prevent employee misstatements, and removed the 2015 product images from its website.
The court held an evidentiary review and found Ocusoft had not met its burden to show irreparable harm necessary for emergency injunctive relief; however, the court scheduled a preliminary injunction hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether TRO should issue to stop alleged false representations that Walgreens’ private label is the same as Ocusoft’s product	Ocusoft: store employees and at least one online listing caused consumer confusion and ongoing harm	Walgreens: incidents are isolated, corrective actions implemented, no systemic policy or proof of customer harm	Denied — no TRO; corrective measures removed immediate threat of irreparable harm
Whether irreparable harm is presumed for Lanham Act false advertising	Ocusoft: courts routinely presume harm where false or misleading comparative ads likely to cause injury	Walgreens: Fifth Circuit has not uniformly adopted such a presumption; any presumption is rebutted by delay, lack of evidence, and corrective actions	Court declined to decide presumption; found irreparable harm not shown on record
Whether Ocusoft’s delay in seeking emergency relief rebuts need for immediate injunction	Ocusoft: delay attributable to investigation (store visits, testing, survey)	Walgreens: Ocusoft learned earlier and delayed; delay undermines urgency	Court: two‑to‑three month delay not dispositive here — did not bar relief but other deficiencies fatal to TRO claim
Whether corrective actions by Walgreens eliminate the need for emergency relief	Ocusoft: additional isolated incidents persist (e.g., Florida tag and employee statement)	Walgreens: replaced tag, issued manager guidance, removed online images; no evidence of customer complaints or lost sales	Court: Walgreens’ remedial steps sufficiently addressed immediate threat; TRO denied

Key Cases Cited

Bluefield Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250 (5th Cir.) (injunction standards and burden to clearly show need for extraordinary relief)
Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282 (5th Cir.) (preliminary injunction standard)
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047 (5th Cir.) (extraordinary nature of injunctive relief)
Anderson v. Jackson, 556 F.3d 351 (5th Cir.) (burden for preliminary injunction)
Paulsson Geophysical Servs., Inc. v. Sigmar, 529 F.3d 303 (5th Cir.) (discussion of presumption of irreparable injury in trademark cases)
Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992 (5th Cir.) (speculative injury insufficient to show irreparable harm)
United States v. Emerson, 270 F.3d 203 (5th Cir.) (no injunction to prevent speculative future injury)
Abraham v. Alpha Chi Omega, 708 F.3d 614 (5th Cir.) (presumption of irreparable injury upon likelihood of confusion in trademark cases)