Law Suit Monavie Versus Dr. Philip Loh (Malaysia)

Summary: Dr. Philip Loh tried to export Monavie to China. Monavie stopped deliveries and the Judge granted a temporary restraining order.

Editor's note: Monavie is right, how can you even think as distributor you can export to countries which are not approved?


WHA LIT LOH aka DR. PHILIP LOH, an individual, and CHANG LIN SAN, an individual,

Case No. 2:11-CV-265 TS Defendants.

This matter is before the Court on Plaintiffs’ Motion for Ex Parte Temporary Restraining Order and Preliminary Injunction. For the reasons discussed below, the Court will grant the temporary restraining order.

MonaVie is a direct selling company engaged in the business of manufacturing, distributing, and selling nutritional health beverages and related products in the United States and

MonaVie et al v. San Doc. 9 internationally.

1 MonaVie’s products are marketed and sold through a network of independent distributors.

2 Defendants Loh and San enrolled as independent distributors of MonaVie in Malaysia.

3 Each independent distributor is bound by a statement of “Policies & Procedures.”

4 Under the Policies & Procedures, an independent distributor is authorized to sell products and operate a distributorship in the country where the distributor resides.

5 In order for a distributor to resell products in another country that MonaVie has officially opened for business (an “Opened Country”), the distributor must submit proof of residence in that country and/or meet certain qualifications.

6 The Policies & Procedures prohibit distributors from engaging in any premarket activities in countries where MonaVie is not opened for business.

7 The Policies & Procedures also contain the following provisions: We own the worldwide distribution rights to MonaVie Products and opportunity. We may choose to open certain countries from time to time and will grant you limited rights to Sponsor in those countries. You shall not Sponsor outside of our Opened Countries. Also, you shall not distribute Products in any country other than your home country of enrollment. Additionally, because of important business, legal, and tax considerations, you shall not resell Products to Customers and Distributors outside of your home country of enrollment. Also, to preserve our rights, you may never secure or attempt to secure approval for our Products or business practices; register or reserve the Company names, trademarks, trade names, or Internet domain names; or establish any kind of business or governmental contact on behalf of the Company. Your breach of any of these provisions shall require you to indemnify us against any claims, demands, actions, judgments, fines, and penalties.

8 You shall not import any Product into a market for which that Product is not officially approved. Products are labeled and sometimes formulated for specific countries.

9 You may not send any unauthorized products to another country. . . .

10 You may not engage in any business activity in an unopened country unless we make a general announcement to all qualifying Distributors. . . .

11 On March 3, 2011, Defendant Loh sent MonaVie an email describing certain unauthorized activities engaged in by him and an associate, Mr. Raymond, in China.

12 Defendant San is, upon information and belief, married to Mr. Raymond. China is not an Opened Country that MonaVie has officially opened for business to distributors.

13 The March 3, 2011 email states that Mr. Raymond met with high ranking officials of China’s Ministry of Health to discuss, in part, MonaVie products.

14 Additionally, Mr. Loh related that pallets of MonaVie product had “already passed the China Health Inspection and have received the Sanitary Certificate, and the products have partly been sold and the rest been given as gifts to different departments in China.”

15 In response to this email, MonaVie informed Mr. Loh that his and Mr. Raymond’s activities were not authorized.

16 A cease and desist letter was sent to Mr. Loh on that same date.

17 On March 5, 2011, Mr. Raymond responded to the cease and desist letter, by refusing to comply with MonaVie’s demands.

18 Additionally, Mr. Raymond stated that “we are half way negotiating our way in with the relevant agencies and ministry and we will not withdraw.”

19 A legal representative of Mr. Raymond’s company, Acaiberry Marketing Sdn Bhd, also responded, describing the many things they had done to market MonaVie’s product in China.

20 Defendant San is a registered director and shareholder/member of the Malaysia company Acai Berry Products Marketing Sdn Bhd.

21 As a result of these communications, MonaVie caused a sales order hold to be placed on Loh’s distributor account. In response, Mr. Loh requested the hold be removed and stated that he would pull himself out of the unauthorized activities that were objected to by MonaVie.

22 Based on Mr. Loh’s representations, the sales order hold was lifted. On March 17, 2011, Mr. Loh informed MonaVie that he resigned his distributorship with MonaVie.

23 Defendant San similarly resigned her distributorship.24 On March 19, 2011, Mr. Loh was seen selling unapproved marketing materials that promote MonaVie’s products and business opportunity.

25 MonaVie informed Mr. Loh that his actions violated the Policies & Procedures.

26 On March 25, 2011, Mr. Loh sent an email to MonaVie discussing an offer from a party in China to purchase MonaVie products.

27 Mr. Loh then stated that Acai Berry Products Marketing Sdn Bhd intends to export as many MonaVie products to China as possible. The email provides the following “next steps” to be taken:
1. Immediate shipment of existing stocks to Shanghai, China.
2. Bulk purchases from distributors in Singapore, Malaysia, Hong Kong, Taiwan and Australia to suit our future demands.
3. Products to be shipped from various countries to China, with a retail selling price of RMB1,200 per case.
4. Our China counter-part will do the repackaging of the product container/boxes.
5. We will then proceed to have the products placed at Government Hospitals, Government Owned Pharmacies, Hypermarkets, Supermarkets, and Chain Stores etc.
6. In the event that we are unable to supply the products for reasons that MonaVie’s production capacity does not commensurate with total orders or demands of the China market alternative means of supply may be adopted i.e.generic duplicates/imitations. (last resort)
7. We will proceed with clinical test as mentioned earlier in our previous email.

In addition, Mr. Loh has recently posted images of MonaVie’s products on the social networking website Facebook, seeking MonaVie products from distributors so that they may be supplied to China.

28 The Declarations of Brent Ririe and Elena Hall explain in detail the reasons that MonaVie operates as it does when opening new countries. Both individuals explain that the process of opening new countries is a time consuming process, taking many years and millions of dollars to complete. Each new country has unique regulations that MonaVie must adhere to. The consequences for failing to adhere to these regulations may be severe. Mr. Ririe states that, because of Defendant’s unauthorized actions, “MonaVie stands to lose many years of effort and many millions [of] dollars that it has invested to establish a name for itself, quality and
government approved products, goodwill, and a competitive market position.”

29 Mr. Ririe describes the possible losses to include: (1) diminished sales and diluted trademarks, trade 28Id., names, and goodwill; (2) lost control and quality of its products and business in the specific
foreign countries for which they are intended; or (3) exclusion from the market altogether.

Plaintiff brought this action against Defendants asserting claims for breach of contract,
trademark infringement, and false advertising. Plaintiff now seek an ex parte temporary
restraining order
As stated, Plaintiffs seek this temporary restraining order on an ex parte basis. Fed.R.Civ.P. 65(b) provides: The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

The Court finds that Plaintiffs have met this requirement. Plaintiffs have submitted the affidavits of Brent Ririe and Elena Hall which clearly show that immediate and irreparable injury will result before the adverse party can be heard. Specifically, those affidavits provide that the following irreparable harm may occur:

(1) diminished sales and diluted trademarks, trade names, and goodwill;

(2) lost control and quality of its products and business in the specific foreign countries for which they are intended; or

(3) exclusion from the market altogether.

Additionally, Plaintiffs have provided the affidavit of counsel which details the efforts made to give Defendant notice of the Motion and why, based on Defendants’ previous conduct, further notice should not be required. Based on the materials presented, the Court finds that Plaintiffs have met the requirements for an ex parte temporary restraining order.


The standard for a temporary restraining order is the same as a preliminary injunction.

31 “A preliminary injunction is an extraordinary remedy, and thus the right to relief must be clear and unequivocal.”

32 In order for Plaintiffs to be entitled to a preliminary injunction, Plaintiffs must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.33 If Plaintiffs can satisfy the last three requirements, the standard for meeting the first requirement becomes more lenient.34 If however, the preliminary injunction would disturb the status quo, as it would here, Plaintiffs bear a heightened burden and must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.

35 1. Substantial Likelihood of Success a. Breach of Contract Plaintiffs’ first cause of action is for breach of contract. “The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.”

36 Plaintiffs allege that Defendants have breached the Policies & Procedures by conducting unauthorized operations in China. The Court finds that Plaintiffs have presented sufficient evidence to show a substantial likelihood of success on the merits of their breach of contract claim. The evidence before the Court is that the parties agreed to a contract, namely the Policies & Procedures. MonaVie has presented evidence that it performed under the contract by paying Defendants all commissions earned by them under the compensation plan of the Policies & Procedures.

37 MonaVie has presented sufficient evidence that Defendants have breached a number of sections of the Policies & Procedures by their unauthorized actions in China. Finally, Plaintiffs have presented sufficient evidence of damages. Therefore, the Court finds that MonaVie has shown a substantial likelihood of success on its breach of contract claim.

b. Lanham Act
MonaVie brings two claims under the Lanham Act: trademark infringement and false advertising. “To prevail on a trademark infringement claim, the plaintiff must show that its trademark was used in commerce by the defendant without the registrant’s consent, and that the use is likely to deceive, cause confusion, or result in mistake.”

38 To succeed on its false advertising claim, MonaVie must show: (1) that defendant made material false or misleading representations of fact in connection with the commercial advertising or promotion of its product; (2) in commerce; (3) that are either likely to cause confusion or mistake as to (a) the origin, association or approval of the product with or by another, or (b) the characteristics of the goods or services; and (4) injure the plaintiff.

39 The Court finds that MonaVie has presented sufficient evidence to show that it is likely to prevail on its Lanham Act claims. MonaVie has presented evidence that Defendants are importing and selling MonaVie product in China. In so doing, Defendants are holding themselves out as agents of MonaVie and that they are authorized to take such actions. These representations are false. Defendants’ actions are likely to cause confusion as to the origin and quality of the products at issue. Finally, Defendants’ actions are likely to injury MonaVie in a number of ways, including loss of goodwill and reputation, loss of potential sales, as well as
possible loss of the market entirely. Therefore, the Court finds that MonaVie has shown a substantial likelihood of success on the merits of its Lanham Act claims.

2. Irreparable Harm A finding of irreparable harm may be based on factors such as the “difficulty in calculating damages . . . and [the] existence of intangible harms such as loss of goodwill or competitive market position.”40 MonaVie has presented sufficient evidence to show that it will be irreparably harmed in a temporary restraining order is not issued. Specifically, MonaVie has shown that it has spent substantial time and money working to enter China as a new market. Defendants’ actions threaten to diminish MonaVie’s goodwill and market position, dilute MonaVie’s marks, and diminish sales. Defendants’ actions could also result in loss of control and quality over MonaVie’s products and could result in exclusion from the market entirely. Therefore, the Court finds that MonaVie has presented sufficient evidence of irreparable harm.

3. Balance of Hardships The Court finds that the harm MonaVie is likely to suffer if a temporary restraining order is not issued outweighs any harm Defendants may suffer. The harm to MonaVie is discussed above and any harm to Defendants is minimal and of their own making.

4. Public Interest Finally, the Court finds that it is in the public interest to issue the temporary restraining order here. There is a clear public interest in the enforcement of contracts and the protection of
trademarks. Based upon all of the above, the Court finds that MonaVie has is entitled to a temporary restraining order.


It is therefore ORDERED that Plaintiffs’ Motion for Temporary Restraining Order (Docket No. 4) is GRANTED and the Court enters the following temporary restraining order. IT IS HEREBY ORDERED that Defendants Wha Lit Loh aka Dr. Philip Loh and Chang Lin San (collectively “Defendants”), including all officers, directors, principals, agents, servants, employees, successors and assigns, and all others aiding, abetting, or acting in concert or active participation therewith, are enjoined from:

a. obtaining licensing or certification for MonaVie’s products and business in China;
b. shipping MonaVie’s products to China;
c. selling and distributing MonaVie’s products in China;
d. placing MonaVie’s products for sale in China;
e. repackaging MonaVie’s products for sale and distribution in China;
f. promoting MonaVie’s business opportunity in China;
g. conducting any business activities in China, Malaysia, Singapore, and elsewhere using MonaVie’s products, trademarks, or trade names; and
h. advertising for the purchase and/or sale of MonaVie through any medium, including print, audio, visual, and electronic media, including, but not limited to Facebook, or any other Internet site.

It is further ORDERED that Plaintiffs provide security in the amount of ten thousand dollars ($10,000.00). This Order will be effective upon posting of the required security. This Temporary Restraining Order shall expire 14 days after entry. The Court sets Plaintiffs’ Motion for Preliminary Injunction for April 12, 2011, at 3:30 p.m. Counsel for Plaintiffs is directed to inform Defendants of this Order and file proof of that notification with the Court.

DATED March 31, 2011.
United States District Judge



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Comments (7)

  1. Homeopathic medical schools are found throughout the world today and in those countries where they are present, help to strengthen and grow medical practice and care. Many homeopathic medical schools existed in the United States circa 1900 and helped to grow and popularize homeopathic medicine at that time in this country. Now, the Pharmaceutical companies, FDA and AMA don’t want the Gerson Therapy or Burzynski Techniques to be confused with the $315 Billion in Pharmaceuticals Americans buy because Juice is not “a medicine or therapy that cures disease or relieves pain” in any way…right?

    Dr. Burzynski’s cancer research has been inspired by the philosophy of the physician, Hippocrates, to “First, do no harm.” True to this philosophy, the treatment regimens developed by him are based on the natural biochemical defense system of our body, capable of combating cancer without harming the healthy cells. Burzynski opened his “clinic” in 1977 in Houston, ten years after he discovered Antineoplastons. Antineoplastons act as molecular switches, which turn off life processes in abnormal cells and force them to die through apoptosis (programmed death of a cell). While they trigger the death of cancer cells, they do not inhibit normal cell growth. They specifically target cancer cells without harming healthy cells.

    Dr. Max Gerson started his research in the 1920’s to basically address his own migraine headaches. Gerson created balance in the human chemistry with nutrients from juices. Max Gerson cured Albert Schwietzer’s wife of Multiple Sclerosis in 1944 and Schwietzer used the Gerson Therapy to cure his Type II Diabetes. In 1946 Max Gerson spoke in front of the United States Congress with six cured former “terminally ill” cancer patients. His testimony lasted three day’s. In June of 1946 Gerson spoke on WABC Radio in New York. For three weeks the Peabody Award winning announcer who interviewed Gerson, spoke of the Gerson Therapy. You can’t make the next part of this story up, first, for some odd reason a Pharmaceutical company bought ABC Radio just 3 weeks after Max Gerson was interviewed. Gerson had about a 55percent “cure” rate for cancer using organically grown juices that balanced the human “periodic table” at a cellular level. Max Gerson was murdered in 1959…but someone attempted to murder him in 1957 where his offices were also broken into and research was stolen.

    Why wont’ the FDA “approve” nutrition? Why can’t a U.S. Doctor prescribe a juice with the cross-section of nutrients that will address a specific disorder or disease?


    The American Medical Association (AMA) has a long history of corruption. Its most infamous leader was Morris Fishbein who reigned from 1924 until 1949. He had failed anatomy in medical school and had never practiced medicine a day in his life, but during his years in power he was recognized as the virtual dictator of American medicine. Journalist and scholar Ruth Mulvey Harmer, Ph.D. characterized Fishbein as having the “ruthlessness of a shark” and concluded that he “managed to hold back the twentieth century for 50 years for the benefit of organized medicine”

    Those who paid large advertising sums to the AMA Journal were given the AMA “seal of approval” for their products, despite the lack of any benefit, while those who wouldn’t pay the advertising tax often had their products labeled as worthless. It was essentially a lucrative blackmail scheme.

    Fishbein supported drugs but adamantly opposed any food or natural remedies.

    Fishbein’s opposition to any therapy or technology unrelated to drugs was based on the simple fact that the AMA’s power base and economic growth required drug sales. Anything which threatened the growing dependency on drugs threatened the AMA’s entire empire. Public health was not and could not be the primary concern of the AMA. Pulitzer Prize (1984) author Paul Starr explained the interlocking interests in his award-winning book, The Social Transformation of American Medicine:

    “Medical authority in prescribing drugs and other products enabled the AMA to stand between the manufacturers and their markets. This strategic gatekeeping role permitted the AMA, in effect, to levy an advertising toll on the producers. Revenues from journal advertisements became the principal source of funds for the association. In 1912 the AMA set up a cooperative advertising bureau, which channeled advertisements to state medical journals. The bureau gave the AMA considerable financial leverage over the state medical societies and helped bind the national association even more tightly together.

    Evidence cited by Eustace Mullins in his 1988 book, Murder by Injection, suggests that Fishbein ignored medical documentation to the effect that products promoted by the AMA were dangerous. According to Mullins, one such product caused blindness in a number of people. Another quietly killed people in their sleep. Another was so poisonous that it eventually caused the deaths of many, many people.


    Many of us have had incredible experiences with products like Mona Vie. Modern Network Marketing across the board is putting out some exceptional products. The human body needs 90 nutrients. Our food is grown in soil with only 3 nutrients. Max Gerson did not have “Superfoods” back in the 1920’s and since his therapy is being practiced and works, they still run with carrots and other juices Max used to bring balance back to the body.

    But imagine if someone were legally allowed to prescribe Mona Vie Active for joint discomfort, back pain or chronic fatigue. The Acai alone is a whole food that experts suggest a human can live on for six months with no sign of malnutrition.

    Some people in this industry know I am passionate about the science and product lines available for distribution. I am passionate about “education” and not “medication.”

    Mona Vie has to do what it has to do on all legal fronts.

    I applaud Dr. Phillip for doing his best to get the product into the hands of people who might need or value nutrition.

    Imagine if everyone used antioxidant based products and liquid vitamins every single day that included the 90 nutrients the human body requires! We would have a “Health & Wellness” epidemic, but that doesn’t put $1.4 Trillion per year into our SICKNESS INDUSTRY in America.

    Yours in Success,

    Peter Dean Bouloukos
    [email protected]

  2. First of all thank you Ted for your interest to look into the matter of the Legal Case between MonaVie and myself, for the details you may want to take a look at and hopefully you will get a clearer pictures of what had happened from the very beginning.

    Yes, MonaVie has through the District Court of Utah issued a Temporary Restraining Order (already expired) for the Exportation and Importation of MonaVie products from Malaysia to China, however, the Temporary Restraining Order was issued from a District Court of Utah, it wasn’t even a Federal Level, and certainly is has no jurisdiction in the Malaysia judicial system.

    MonaVie has appointed a Greatest China General Manager by the name of Mr. Dan Zhu over two years ago to handle the application process of licencing for MonaVie products to import into China, however, nothing has been done until our group of companies send in the application and the MonaVie products licenses have been granted to our company.

    Thank you Peter for your positive comment, indeed there are plenty of cancer patients in China, and seeking medical care in China are extremely expensive, but if we can have a good products like MonaVie with such a high antioxidant that can help to eliminate the free radicals cells, why not having this wonderful products to get into the hands of as many people as possible to improve their health.

    My question is, will MonaVie loss billions of dollars because of other people bringing the products into China? Or will MonaVie generate more revenue because of the increase of demands through the normal network marketing system? (Even the products were purchased in Malaysia but ship to China.)

    Dr. Philip W. Loh

  3. Dr. Loh- you are an illegal builder, at least wait for monavie to legally enter into the country. I read about your plans to illegally build knock off monavie products. You are deesperate to become a high level rank in MLM. always remember: slow and steady wins the race. Dont have a lead foot.

  4. Ron: Perhaps you have not clearly read the posting and understand the situation, I am not saying that my group are heroes, but we did save Monavie’s future by taking the licenses into our hands. A group of distributors with an appointed director of Monavie Malaysia were trying to hijack the license into China, and got found out from our group, the licenses were issued, but we managed to put a stop to it and have it transferred to our company, as the licenses can not be cancelled and large amount of fees has already incurred. If we do not proceed with the process of getting the licenses into our hands, China authority will treat these applications as not genuine and once the licenses being cancelled, it also meant Monavie products will be banned forever to import into China.

    Moreover, there are many distributors smuggering products into China via HK an Taiwan, with the licenses approval in the system, Monavie is protected, cos if these smugger products being caught by the custom, the products will be banned forever as well.

    And the moment our company received the licenses, the first thing we did is to inform Monavie,, and we propose a surrender of the licenses to Monavie provided Monavie granted us a JV partnership, which we believed it is fair, unfortunately, the negotiation wasn’t successful as Monavie did not keep their words, then later they send David McManus to negotiate with us again and this time Monavie wanted to buy over the licenses, and of cause we offered a price, and again, McManus said Monavie will consider but later send us a Utah court restraining order.

  5. Dr. Loh…u are trying to “help” monavie get the license and then sell it back to them by getting a partnership with them. Keep dreaming buddie. I would have done the same thing Monavie did. Any smart , huge company would have done that.

  6. Jason, please spend some time to read all the posting at my facebook, first of all, the wasn’t any request from MonaVie to ask for “help”, nor our group initiated the “help”, it all started by a few people link to the local director trying to hijack the licenses. When our group found out, either we do something or nothing, and we chose to do something.

    I believed if this thing happen to be in ForLife and you get to find out you will do the same, as time will be running out by the time you inform the management and wait for their reaction.

  7. Dr Loh I wish you all the best of success, Living on the edge is one of those treats in life when the adrenalin is pumping and you just do things. With your experience in the industry can I please enquire as to what book you are reading at the moment and what is your one secret to doing. Obviously to be a professional along with a networker you were given an edge as a young man what has helped you to realise your dreams.

    Cheers danny Perth WA

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