IP Law Daily, TRADEMARK—S.D. Cal.: Photo of Wegovy pen in ads did not constitute nominative fair use, (Sep 10, 2025)

By Patricia K. Ruiz, J.D.

The plaintiffs sufficiently alleged the defendants used more of the plaintiffs’ marks than was necessary, as the medicines’ names are sufficient to communicate the defendants’ business.

The U.S. District Court for the Southern District of California denied a motion to dismiss trademark infringement and unfair competition claims by the owner of the Ozempic and Wegovy trademarks. The court was unpersuaded by the defendants’ arguments that their use of the marks in advertisements to sell the plaintiffs’ products constituted nominative fair use (Novo Nordisk A/S v. Goglia Nutrition, LLC, No. 3:24-cv-01385-LL-VET (S.D. Cal. Sept. 8, 2025)).

Trademark infringement, unfair competition allegations. Novo Nordisk A/S and Novo Nordisk, Inc., are health care companies that develop medicines to treat chronic diseases such as diabetes and obesity. They are the only companies in the U.S. with FDA-approved medicines containing semaglutide, the primary ingredient in the company’s trademarked medicines Ozempic, Wegovy, and Rybelsus. Since 2017 for Ozempic and 2021 for Wegovy, the plaintiffs have promoted, advertised, and marketed these medications using the Ozempic and Wegovy trademarks. The plaintiffs allege these trademarks are “well-known, strong, and famous marks.”

The plaintiffs filed suit against Goglia Nutrition, LLC, d/b/a G-Plans and Futurhealth, Inc., alleging the defendants market and sell to patients unapproved compound drugs that purport to contain semaglutide and that are not approved by the FDA. The plaintiffs further alleged that the unapproved compounded drugs sold by the defendants are made by compounding pharmacies, which deliver them either directly to patients or to the defendants for administration or dispensing to patients. The defendants also run sponsored ads online heavily emphasizing the Ozempic and Wegovy marks, such as offers for “Easy fast Ozempic prescription – Easy fast Wegovy prescription” and “Get Ozempic with no insurance,” the plaintiffs alleged. In the ads, the plaintiffs alleged, the defendants repeatedly assures patients they will be prescribed “true GLP-1 medications,” rather than informing patients that they well unapproved compounded drugs.

Motion to dismiss. The defendants moved to dismiss the plaintiff’s trademark infringement and unfair competition claims, arguing: (1) the complaint fails to comply with Federal Rule of Civil Procedure 8 because it includes generalized allegations lumping the defendants, who are two separate entities, into one ‘group’ throughout the pleading, making it impossible to determine the actual grounds upon which the plaintiff’s claim rests as to each individual defendant; and (2) the defendants’ use of the plaintiff’s marks “fall[s] squarely within the nominative fair use doctrine. In support of their second argument, the defendants argue that they are “concierge medical access platforms, providing access to physician-guided nutritional plans, prepared meals, medical services, and weight-loss medications, including Wegovy, Ozempic, and other unbranded semaglutide medications.”

The defendants acknowledge that the defendants own the trademarks for Wegovy and Ozempic but claims the plaintiffs are seeking to use their trademark rights to make it more difficult for customers to access the popular weight loss medications through the defendants’ services. The defendants, asserting that the Lanham Act cannot be used to prevent nominative fair use—the use of another’s mark to identify or refer to the mark holder’s goods, argue that they only used as much of the marks as necessary to describe the plaintiffs’ medications and that their use did not create any implications of sponsorship or endorsement from the plaintiffs.

Group pleading. To satisfy Rule 8, a complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests. Rule 8 dismissal is proper where one cannot determine from the complaint who is being sued, for what relief, and on what theory. Group pleading is not fatal, so long as the complaint gives the defendants fair notice of the claims against them. The defendants argue that the complaint violates Rule 8 because it makes group allegations against both named defendants, referring to them as simply “defendants,” without any attempt to identify the relationship between them. The defendants further argue that none of the alleged activities conducted by the defendants can be imputed onto any one defendant.

The court agreed with the plaintiffs that the complaint does not deprive the defendants of fair notice of Novo Nordisk’s claims. The court determined that the complaint can fairly be read to find that the plaintiffs met their burden to show that each defendant participated in the specific wrongful conduct alleged. Further, the defendants are in the same line of business, similarly situated, and closely related under the same CEO. The court concluded that Novo Nordisk sufficiently alleged that each defendant is engaged in each category of unlawful conduct.

Nominative fair use. Nominative fair use is appropriate where a defendant has used the plaintiff’s mark to describe the plaintiff’s product, even if the defendant’s ultimate goal is to describe his own product. Nominative use of a mark—where the only word reasonably available to describe a particular thing is pressed into service—lies outside the structures of trademark law because it does not implicate the source-identification process that is the purpose of the trademark. The court explained that a commercial user is entitled to a nominative fair use defense if three requirements are met: (1) the product or service in question must be one not readily identifiable without use of the trademark; (2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

The court determined the defendants meet the first factor, as the products would not be readily identifiable without the use of the plaintiffs’ trademarks and because it is necessary for the defendants to use the plaintiffs’ marks for the defendants’ business, which allegedly sells, among other products, the trademarked medicines. However, as to the second factor, the court found the plaintiffs sufficiently alleged the defendants used more of the plaintiffs’ marks than was necessary, as the medicines’ names are sufficient to communicate the defendants’ business—but it was unnecessary for the defendants to use symbols associated with the trademarks, such as a branded Ozempic injectable pen. Third, the court found the plaintiffs met their burden at the motion to dismiss stage to plead sufficient facts that a consumer may reasonably infer sponsorship or endorsement from the defendants’ use of the Wegovy and Ozempic marks in advertisements and websites with claims that positively promote the plaintiffs’ products. While a fact-finder may ultimately interpret the advertisements and websites as mere descriptions of their businesses’ offerings, it is also plausible that the fact-finder could conclude that the descriptions imply that the defendants have approval, endorsement, or sponsorship from the plaintiffs in selling the plaintiffs’ products.

Viewing the evidence in a light most favorable to the plaintiffs, the court assumed the advertisements and websites infer approval, such as sponsorship or endorsement, and denied the motion to dismiss.

The Case is No. 3:24-cv-01385-LL-VET.

Judge: Lopez, L.

Attorneys: Francoise N. Djoukeng (Covington & Burling LLP) for Novo Nordisk A/S. Jean-Paul Ciardullo (Foley & Lardner LLP) for Goglia Nutrition, LLC d/b/a G-Plans and Futurhealth, Inc.

Companies: Novo Nordisk A/S; Goglia Nutrition, LLC

Cases: Trademark CaliforniaNews