Trevor Wells, an attorney for Cogent Solutions, told the judges that, even though Baxyl isn't mentioned by name, the obvious intent of the video is to impugn his client's product. That's in violation of a settlement the two companies reached, Wells said.
Judge John M. Rogers noted that the settlement doesn't ban Hyalogic from talking about all similar supplements, but appears to stop them only from mentioning Baxyl specifically.
"You've got, somehow, to identify the competitor," Rogers said.
"In this context, in this market, these are the two superpowers," Wells said. "It is a comparative inference by nature."
Judge Boyce F. Martin again asked why there's no blanket prohibition on criticizing competitors in the settlement agreement.
"We contend it is what the parties intended," Wells said.
"We could care less what the parties intended," Martin said.
Hyalogic's attorney, Bart Greenwald, latched on to the questions by the judges, again noting that the video mentions "others use some of these preservatives" without citing Baxyl.
"We settled this case. This case should have been over," Greenwald said. "We did what we thought should have gotten rid of this nonsense."
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