Presentation Booklet (incl. Back & Inside Covers)

"Misleading and Deceptive Conduct: When should it be actionable under Section 2 of the Sherman Act? Joint DOJ/FTC Workshop on Single Firm Conduct"

by Frommer Lawrence & Haug LLP (ref: justice.gov/archives/atr/misleading-and-deceptive-conduct-1). Slides include "Abuse of Governmental Processes Through Deception in the Intellectual Property Setting", slides 10-12 reference WALKER Process, Inc. v. Food Machinery & Chem. Corp., 382 U.S. 172 (1965), "Inequitable Conduct/Sham Litigation" and others.

Where the presenter was from law firm "Frommer Lawrence & Haug LLP". Of note and relevance, 2:13-cv-02174 dkt 1 to dkt 24, included "Frommer LAWRENCE & Haug LLP" for Plaintiff Eat Right Foods Ltd. The middle “LAWRENCE” name is important. For instance, “the District Court and the parties never learned how Ms. Douglas-Clifford’s March 3, 2010 [NZST] email was actually understood by Whole Foods’ outside trademark counsel [C. “LAWRENCE” Graff]. This is because Whole Foods’ outside trademark counsel, a partner in the same law firm as Whole Foods’ trial counsel, never submitted a declaration in connection with this case and objected to Eat Right’s subpoena for deposition testimony on relevancy grounds” (ref: 9th Circuit DRAFT Appeal Brief [underline added] (8Oct15) and completely omitted from final 15-35524 brief pub. 30Oct15).

"In March 2010, when Mr. Leville and Dr. Fuhrman met with Whole Foods representatives regarding forming an Eat Right America food company…In June 2010, Dr. Fuhrman…dinned with Whole Foods’ CEO at a New York restaurant…presented their line of salad dressings" (ref: Nutritional Excellence v. Joel D. Fuhrman and Drfuhrman Online, Inc.1:2011-cv-00435 id 52 in Petition for...aid of arbitration 12Jan10). Where 2:13-cv-02174 dkt 32 id 6 “Exhibit B [dkt 32-2]…distributed or manufactured” had middle-missing "packer" (ref: dkt 27-11 "manufacturer, packer, or distributor") or “Falsely Claiming to be Manufacturer[, Packer]” (ref: FTC case 1887). And let's not forget the 'Billionaires' Dinner' with evidence "scrubbed" (ref: Julia La Roche; Yahoo!Finance; Updated 16Jul19), "dined with him anyway" (ref: Buzzfeed 10Spt19), relevant “Damn the torpedos” behavior (ref: 9th Cir. 18-35473 dkt 55 p10, 19) and "cannot take a full-speed ahead, damn-thetorpedoes approach" (ref: 665 F.3d 1015 (2011)).

Of note: 2Mar10 registration certificate issued for USPTO 76649960; 3Mar10 extension of time to file a SOU 76682572 (no actual product specimens ever provided). With “well-documented
reality that giant international rivals recognize that their mutual self-interest lies in cooperation and collusion, not hard competition” (ref: p817 Walter Adams and James W. Brock,The Proposed Emasculation of Section 7 of the Clayton Act, 65 Neb. L. Rev. (1986) also p821 "lox"). Where lax n. [lox] smoked-dried salmon; lax a. (rare) not compact or tight; collusion n. Fraudulent secret understanding between ostensible components [L ludo play] and ostensible a. Professed, used as a blind (ref: Oxford Dictionary 4th edition).

Where the "Report on Permanent Weight Loss" by Roberta Russell (pub. 29Sep16) "Whole Foods advertisement (Appendix 3) featuring Dr. Joel Fuhrman as Eat Right America’s Chief Medical Officer quoted the flawed study on line in its 28 Day Challenge plan, boldly quoting his “53-pound-weight-loss” study in its headline. Even after Dr. Campbell informed members of the Whole Foods board and its leader John Mackey that Fuhrman misrepresented not just the longevity of the weight loss, and was discovered to be mistaken about the amount of weight loss, they did not remove the Whole Food’s wrong representations (Appendices 3 & 4). This retrospective study of Fuhrman’s own patients was apparently not checked against the raw data by the journal editors to compare it with the study’s conclusions". See also Appendix 1 "Recession of Authorship" 7Jul11 and Appendix 2 "Letter from T. Colin Campbell, PhD to John Mackey, Whole Foods" 19Nov11 including issues such as "this behavior can ruin personal careers as well as seriously distort the credibility of this field". Where deal done 4Aug11 (ref: 2:13-cv-02174 dkt 55-1 excluded p41 disclosure of legal correspondence pre- USPTO TTAB 91202219 filing 21Oct11). And dkt 149 p9 use of “ERA” in WFM stores was a sophisticated bundle ie a “ERA/ANDI hybrid logo” (refer appeal 18-35473; ER910 (redacted). On 16th October 2019, Amazon was assigned (from WFM) one part of this “hybrid” logo ie the ANDI trademark see USPTO...77868087.

In the situation of Eat Right Foods Ltd, it was Professor J.R.L WALKER, University of Canterbury, Department of Botany (rather than Walker Process Inc) and others who uncovered "Antibiotic substances from New Zealand plants. II. Polygodial, an anti-Candida agent from Pseudowintera colorata; Planta Med 1982 Mar;44(3):134-8 ... a remarkable breakthrough. Where EATRIGHT® ingredient : product attributes include "yeast reduced", "suitable for a low yeast diet" etc. See also, recent great work by Massey University on "enzymes deaminate cytosine" (ref: Nat Commun 14, 6382 (2023)).

Where "Fraud on U.S. Patent and Trademark Office" also present in case 2:09-cv-06988-DSF-JEM dkt 482 p4 "Plaintiff is only required to prove the applicant’s – i.e., NuVasive’s – knowledge and intent" [see also NuGrape "misbranding" FTC cease & desist]. And 2:13-cv-02174 dkt 108-10 p14, during the full deposition, "Margaret Wittwnbeg [Wittenberg] contradicted herself regarding searches for TM [trademark] clearance. She first said she doesn't know about that. "That's not my job". Then we found emails in 2010 regarding naming the 4 pillars of HSH [Health Starts Here] where she is like "make sure we clear that trademark before we use it "Priceless". And Ms. Wittenberg^ was Vice President of Governmental and Public Affairs prior to position of Global Vice President of Quality Standards see eg "USDA/National Organic Standards Board Dairy Pasture Symposium" (April 18-19, 2006) slides including "Organic [50%] price premium is real", "pasture-based system as a requirement, is more important than watering them down to increase supply or keep prices down". Yet "sewage sludge^" [2:13-cv-02174 dkt 27-1 p6] or effluent [Walker Process equipment] organic practice differences was not covered. Also escalating incidences of wild fires, depending on geographical location, encourage or restrict use of Polybromodiphenyl ethers (PBDEs) retardants^^ [aerial application rotor-wing "buckets" or (not stationed in New Zealand) fixed-wing "hoppers"].

See also, a very interesting reference to “sewer” in [2:13-cv-02174] “List of computers, people with custody and ftp file” email (19Mar14). Where effluent n. Stream from larger stream, sewage, manure; manure v.t. Treat with m. [MANOEUVRE]; manoeuvre n. strategical or tactical movement (ref: Oxford Dictionary, 4th ed). Where shipping container exports of EATRIGHT® products have had no “S.H.I.T.” (Store High In Transit or Ship High In Transit) stamp or special storage requirements. And fecal consistency stool testing, fecal excretion of saturated fats by soluble dietary fiber are important EATRIGHT® ingredient attributes. For instance, depending on the product, corresponding EU and/or FSANZ “fibre” ("fiber") approved health effects include “contributes to normal bowel function”, “acceleration of intestinal transit”, “contributes to regular laxation”, “improves gastrointestinal comfort”.

“Once Rare Digestive Disease Now Striking 1 in 133 Americans” (ref: Thrive Allergy & Gluten-free Expo; 2Feb09; rs6.net; constantcontact.com). One in every 12 individuals has received a diagnosis of a rare or "orphan" disease. "There are more than 5,000 rare disorders that, taken together, affect approximately 20 million Americans" (ref: UIA Encyclopedia of World Problems & Human Potential ). rare a. Of loosely packed substance, NOT dense; rarity [L rarus]; density n. (opp. rarity) (ref: Dictionary, Oxford, edition 4). Where "nutrient dense" [ANDI® (Aggregate Nutrient Density Index) ref: 2:13-cv-02174 dkt 91; dkt 108-4 p6-7; dkt 108-5 p10,16] included fruit and vegetables in water retentive state. But "Chicory, raw" (X40 96.2% [bound & unbound] water ref: NZFoodCompositionDatabase); Chicory greens, raw (11152 92% [bound & unbound] water ref: FoodData Central) and Chicory roots, raw (11154 80% [bound & unbound] water ref: FoodData Central). And Chicory (raw/dried and part unspecified ie greens, spindle-shaped taproots, flowers etc; Common/vernacular names: Blue sailors, succory, witloof, endive) Indications: Water Retention (1; FAD; PNC; VVG; WO2); Activities: Diuretic (1; FAD; PNC; VVG; WO2) (ref: Handbook of Medicinal Herbs 2nd ed.)

And what lopsided or asymmetric oligopolist information including price, also referred to as “rockets and feathers” (ref: Bryan Chapple, ComCom), have you experienced? Where there has been quick speed price increases yet slow [WFM promises but over a year to enact] price decreases. See also rocket acquisitions [2:13-cv-02714 dkt 55-1] yet feather [additional year license; even longer in use time] trademark offending.

See also "Grandfather Clause" vested rights in, among others, the FTC Act section 13(b) “disgorgement”. Where the list of enacted Grandfather Clauses (grandfather policy or grandfathering) includes the Federal Communications Commission (ref: Wikipedia). Pre-1930 the 3 letter call signs of United Broadcasting Company (UBC) [“The Silver Network”, “precocious baby chain of the Pacific Coast”] included KXA Seattle, KXL Portland, KGB San Diego (see: USPTO 3253018 a sub-brand of "DLM" and “middle” assignment). On 1Apr31 UBC “suspended operations”, "Federal Trade Commission…rules of business practice", "curtails its activities...lack of financial support" [L curtus short; -tail corrupt. of obsolete adj. curtal ref: OX Dict. ed4], merged with The Northwest Broadcasting System (KGA Pokane, KEX Portland, KJR Seattle). Post-1930, 4 letter call signs were adopted (ref: The Broadcast Archive, Broadcasters News Bulletin 11Apr31). Securities and Exchange Commission (SEC) pre-Wild Oats merger 4 letter ticker “WFMI”; post-Wild Oats a 3 letter ticker “WFM”; not the inference “completed our initial public offering in January 1992, and our common stock trades on the NASDAQ Global Select Market under the symbol “WFM.”” With missing in the middle “WFMI” (ref: 2:13-cv-02174 dkt 27-1 p5) "mastery of complex [command the middle] distribution systems can matter more than having the best product on the shelf" (ref: Geoff Tuff and Stephen Wunker, "Beacons for..." [signal], pub. 2014). prize n. prize-court, department of admiralty concerned with prized possession; award v.t. Adjudge (payment, prize, penalty, to. n. Judicial sentence; thing awarded (ref: 4th ed. Oxford Dictionary); “award” (ref: dkt 26 id 2). See also "DLM" (Dorothy Lane Market) "Honestly Better" trademark in "X-Search...third party registrations" USPTO 85746373 "Gluten Smart by Eating Right" where classification of goods "gluten free" to be in both (29&30) classes (5Dec12 Offc Action Outgoing).

USPTO registration 2738837 has, in its 'related property information claimed ownership', a river registration 1930917 [registrant 'Advanced Computer Communications' (Ericsson Inc) where other river applications included “Nile” 74521329, “Danube” 74521344, “Yukon” 74650835, “Tahoe” 74521330, “Congo 74652559”]. But "Indian RIVER Fruit & Vegetable Distributors, Inc., et al and Frank C. Spadaro" (ref: FTC dkt 4730 decision: 6Jun44) was a “terroir” characteristic. And “river blindness” (onchocerciasis or “craw-craw” ref: UIA 134153) is caused by parasitic worm (Onchocerca volvulus) yet “no vaccine or drug to prevent”. It is considered the “second-most common cause of blindness due to infection, after trachoma” a neglected tropical disease (NTD) ref: cdc.gov/parasites/resources/pdf/NTD_FactSheet_2024.pdf et al. Where black-white pepper (Piper nigrum) has “craw-craw” ethnobotany use (ref: phytochem.nal.usda.gov) and EATRIGHT® anti-[Soil-Transmitted]-Helminths (ie Hookworm, Roundworm, Whipworm) bioactive ingredients are listed for specific products.

But, because “people from developed Westernised countries experience less parasitic diseases (ie hookworm infection), they [do] have higher rates of inflammatory and autoimmune disease including coeliac, asthma, allergy, MS and IBD” (ref: Hookworm clinical study; Malaghan Institute of Medical Research updated 30May24). Hence EATRIGHT® attributes, bioactives and supporting research are also listed for those aliments where applicable.

P.S. "E-Mail[s] and...attachments were free of any virus, worm, Trojan horse, and/or malicious code" (ref: Doctor Gluten team; 27May08).
P.S.S. Photo proofs of EATRIGHT® Presentation Booklet Back and Inside Covers [ref: 2:13-cv-02174 dkt 26-2] where the stock image flowers are not in tin/metal buckets/cans [230 F. 859 (1916)].