Back in January, a Dallas-based company that sells bottled water -- pardon, a "natural spring water ... created from all natural ingredients including extracts of alfalfa stems and leaves, milk whey and enzymes from pineapple and papaya" -- asked the University of Texas's M.D. Anderson Cancer Center if it wouldn't mind testing its magic potion. M.D. Anderson said sure ... for a price. Which is how Noel Road-based Evolv got M.D. Anderson to test the anti-inflammatory effects of its water -- specifically, the so-called "Archaea Active ingredients" that Evolv claims separate its water from, oh, regular water. Everyone agrees on that: Evolv (which is also known as HealtH20 or EvolvHealth), paid M.D. Anderson to test its some of its water, which, according to the hospital, ain't nothing but Houston tap water with some stuff in it.
What happened next, though, is what leads us to this federal lawsuit filed in Houston this week.
M.D. Anderson did its testing -- all very "preliminary" stuff, says the suit, and the cancer center never checked its "safety, efficacy, medicinal or beneficial health value." But Evolv -- which is a self-proclaimed "multi-level marketing company" that has the recruiting videos to prove it -- started running on its Web site statements like, "The Archaea Active formula has undergone in-vitro testing by The University of Texas M.D. Anderson Cancer Center out of Houston." Which, as far as M.D. Anderson is concerned, gives people the impression that the cancer center has endorsed the product. And so, at 11:31 a.m. on September 9, its communications director posted a blog item that said, "There seems to be buzz on the Internet about a type of water that a Dallas-based company is marketing and this water's relationship to M. D. Anderson. So we thought we'd un-muddy the water for our patients, employees and supporters. M. D. Anderson doesn't recommend the water."
Two hours later, Evolv's chief marketing officer, Jonathan Gilliam, posted his response to M.D. Anderson's attempt at distancing from the bottled water: "MD Anderson and its employees do not endorse Evolv as they are precluded from endorsing any product using the MD Anderson name. Our test results are just that, and are not an endorsement or backing of M.D. Anderson. The Evolv management feels extremely blessed and fortunate that an institution the caliber of M.D. Anderson has tested our product."
But after that, Evolv didn't stop touting the fact its water was merely tested by M.D. Anderson -- even though it paid for the testing and even though, according to M.D. Anderson's spokeperson, "no efficacy or toxicity data were generated at M. D. Anderson nor was the product tested on humans." Far as the UT Board of Regents is concerned, Evolv's doing nothing more than using M.D. Anderson's name and rep to build a "pyramid," which is why it's taking Evolv to court for trademark violation and trademark dilution and damages.
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