Just over two months after L’Oreal filed suit against Drunk Elephant for allegedly infringing one of its patents in connection with an award-winning and highly-buzzed-about $80-per-ounce Vitamin C serum, L’Oreal filed to voluntarily dismiss one of the parties from its case, although a spokesman for L’Oreal says that the case is still very much underway and the development is little more than “a common procedural step to focus on the legal entity that has engaged in the infringing conduct.”
According to the complaint filed against Drunk Elephant LLC and Drunk Elephant Holdings LLC in a federal court in Austin, Texas in November, L’Oreal maintains a utility patent for the makeup of its brand Skinceuticals’ $180 C E Ferulic serum. Thanks to that patent, L’Oréal “possesses all rights, title and interest in … stabilized ascorbic acid compositions and methods therefor,” which “provide enhanced stability, enhanced solubility and an enhanced photo-protective effect [for ascorbic acid] as compared to prior compositions” for a period of 20 years beginning on February 20, 2007.
The problem? By manufacturing and offering for sale its popular C-Firma Day Serum – which contains a specific “single-phase solution composition” of a cinnamic acid derivative selected from p-coumaric acid, ferulic acid, caffeic acid, sinapinic acid; cis and trans isomers; an alkanediol; and water and mirrors that of L’Oreal’s patent-protected composition – Drunk Elephant is directly infringing L’Oréal’s patent.
According to a statement from a rep for L’Oreal, "L'Oréal USA dismissed one of the two legal entities from our original filing, Drunk Elephant Holdings, LLC. We remain committed to protecting our valuable intellectual property and preventing Drunk Elephant from further acts of infringement."
Note: A previous version of this article cited the court docket as listing a “NOTICE of Voluntary Dismissal by L'Oreal USA Creative, Inc.” That applies exclusively to Drunk Elephant Holdings, LLC.
*The case is L’Oréal USA Creative, Inc. v. Drunk Elephant, LLC, 1:18-cv-00982 (W.D.Tex.).