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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Missouri v. William A. Stallknecht, et al.

Case No. 99CV212429 (Cir. Ct., Mo., Oct. 25, 1999)

According to the Verified Petition filed by the State of Missouri in this action, defendant William Stallknecht is a licensed pharmacist in Texas who is President, and a 50 percent shareholder of defendant S&H Drug Mart, Inc. ("S&H"). S&H operates an online pharmacy at the urls and It also maintains store locations in the State of Texas. Defendant James Reed Williams, M.D. is a doctor licensed to practice medicine in the State of Texas. Neither S&H nor Stallknecht were licensed by the appropriate authorities to operate a pharmacy in Missouri. In addition, Dr. Williams was not licensed to practice medicine in Missouri.

According to the Verified Petition, S&H advertises, offers for sale, and sells prescription drugs over the Internet. At the time the petition was filed, S&H sold such drugs to Missouri residents. To purchase prescription drugs from S&H, the user must first sign a "waiver of liability", releasing defendants from any and all liability arising out of the user's purchase of drugs. In addition, the user must also acknowledge that he has already consulted with a doctor or pharmacist. The user is then permitted to order prescription drugs. At the same time, the user must complete an online consultation form, supply defendants with credit card information for payment purposes, and authorize a charge of $85 for an a doctor's consultation. The user's online consultation form is submitted to a doctor (including defendant Williams) who, if he/she determines it is appropriate, issues the user a prescription for the requested medication. The medication is then shipped by S&H to the consumer.

According to the Verified Petition, when orders are filled in this fashion:

At no time either before, during or after the sale do any of defendants actually speak with the consumer, see the consumer, conduct a physical or any other type of examination of the consumer, see the consumer, or perform any tests on the consumer or the consumer's blood. Further, at no time do defendants attempt to confirm by any means the information provided by the consumer on the online consultation form ...

According to the Verified Petition, "under Missouri law, it is unlawful for nonresident pharmacies to ship, mail or deliver prescription drugs into Missouri without first being licensed to do so by the Missouri Board of Pharmacy." Charging that defendants' actions as described above constituted a violation of Section 407.020 RSMo, 1994 of the Missouri Merchandising Practices Act, the State of Missouri brought suit.

After issuing a temporary restraining order, the court issued a "Consent Permanent Injunction and Final Judgment" on consent of all parties. This Judgment enjoined defendants from shipping prescription drugs into Missouri unless and until they obtained all required licenses from the Missouri Board of Pharmacy. The defendants were also enjoined from filling any prescription, prescription drug order or telephone prescription for a Missouri resident if (a) the same has been issued by a health care practitioner not licensed to practice medicine in the state of Missouri, who issues the same as a result of the transmission of individual patient data by electronic or other means from within the state of Missouri to such health care provider outside the state or (2) the prescription has been issued by a health care practitioner who has never conducted a physical examination of the person for whom the prescription was issued. The Judgment mandated that defendants post on their website a notice that their service is not available to Missouri residents.

In addition to injunctive relief, the Judgment also imposed civil penalties on defendants in the amount of $15,000, and obligated defendants to provide "full refunds" to specified Missouri residents who ordered products from defendants over the Internet.

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