Ex-'Biggest Loser' Says Diet Cos. Ripping Off Her Image
A former contestant on NBC's "The Biggest Loser" is claiming that more than a dozen companies in the diet industry have used her image without her permission to hawk dubious weight-loss products on the Internet.
Jennifer Eisenbarth alleges that a broad range of product suppliers and online advertisers have misappropriated her image and fabricated quotes to sell acai berry supplements, colon cleansers and other products promising effortless weight loss, according to an amended complaint filed Tuesday in the U.S. District Court for the District of Minnesota.
"These defendants are wrongfully capitalizing on plaintiff's reputation and intellectual property rights to lure consumers into ordering the infringing products on the false premise that they have been utilized or recommended by Mrs. Eisenbarth when they have not," the complaint said.
Eisenbarth, who was booted from the first episode of the reality show's third season, went on to lose almost 100 pounds through a doctor-supervised regimen of diet and exercise, the complaint states.
She initially launched the suit in December, alleging the conduct amounts to false advertising and unfair competition under the Lanham Act; deceptive and unlawful trade practices under state law; and common law violations of the rights of privacy and publicity, defamation, misappropriation and unfair competition.
In her amended complaint, Eisenbarth added new supplier defendants — including Herbalife International of America Inc., Hopkins Fusion, Bryant Research LLC, Enado Media LLC, Sterling Management Solutions LLC, Irollie Marketing LLC, Natural Source Store LLC and Bowtrol Corp. — and new advertiser defendants, including Congoo LLC and HD Vest Advanced Systems LLC.
Karaktr Media LLC, known as Bromacleanse; Central Coast Nutraceuticals Inc.; and FWM Laboratories Inc. were named in the original complaint.
The companies marketing techniques include showing "before and after" pictures of Eisenbarth, quoting from a nonexistent blog and otherwise trading on her image, which the public associates with healthy living, the suit argues.
Many of the supplement sellers are facing numerous consumer complaints related to credit card fraud and deceptive trade practices, further damaging Eisenbarth's reputation, the complaint alleges.
"The defendants' Internet marketing is also done in a way that deliberately obfuscates their identity by failing to properly disclose their contact information, by obscuring their proper names and by changing their names," the suit said.
At least two of the defendants — Bromacleanse and Irollie — argue that they have also been the victims of shadowy Internet marketing and are not to blame for the use of Eisenbarth's image.
"Bromacleanse is very sympathetic to Jennifer's situation and feels that it is unfortunate that it occurred," said attorney Brennan Moss of Pia Anderson Dorius & Moss LLP, who represents Bromacleanse.
It was the other defendants that advertised Bromacleanse on their Web sites without the company's knowledge, like an independent contractor going rogue, Moss said, adding that his client might have claims against them.
"Bromacleanse stands behind their product," Moss said, noting the company offers a free trial.
Mike Geary, president of Irollie and author of "The Truth About Six Pack Abs," described a similar situation, noting that fellow affiliates of Clickbank, an online marketplace, have sold his products without his knowledge through Web sites he neither owns nor operates.
John Barcus of Figari & Davenport LLP, who represents defendant HD Vest, known as Ad Shuffle, said, "We don't believe in general that the allegations against Ad Shuffle have any merit, and it's our position that Ad Shuffle is not responsible for any of the damages the plaintiff claims to have suffered."
He said his client had not yet been served with the complaint.
"The lawsuit poses some unique legal questions in the relatively young online advertising industry, and we look forward to a favorable resolution to those issues," said Todd Norris of Bullivant Houser Bailey PC, who represents defendant Adex Media, the maker of colon cleanser Tricleanse.
The remaining defendants in the suit did not immediately respond to requests for comment or could not be reached on Wednesday. An attorney for Eisenbarth also did not immediately respond to a request for comment.
Eisenbarth is represented by Merchant & Gould PC.
Bromacleanse is represented by Pia Anderson Dorius & Moss LLP. FWM is represented by Lindquist & Vennum PLLP and Arnold & Porter LLP. Adex is represented by Bullivant Houser Bailey PC. HD Vest is represented by Figari & Davenport LLP.
Counsel information for the remaining defendants was not immediately available.
The case is Eisenbarth v. FWM Laboratories Inc. et al., case number 0:09-cv-03525, in the U.S. District Court for the District of Minnesota.
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