To recap, here, about a month ago, Schering-Plough's lawyers filed a federal suit in Delaware District Court -- against Neutrogena, and its Ultrasheer® products advertising -- claiming that some of the sunscreens marketed by Neutrogena made "literally false" comparative claims about some of the Coppertone® products sold by Schering-Plough, constituting arguable violations of the federal Lanham Act (which Act prohibits false advertisements through channels of interstate commerce -- like print and TV ads).
Last week, Neutrogena formally answered those Coppertone charges -- and made a few of their own. In technical terms, Neutrogena filed counterclaims against Schering-Plough's Coppertone earlier Lanham Act claims. In the street-vernacular, though -- Neutrogena cracked open a very tall can of "shut-up juice". Last night, Neutrogena filed its briefs in support of dismissing Schering's claims, and supporting its own counterclaims. While these documents are riddled with redactions (to protect both parties' trade secrets, primarily), and some (of Schering-Plough's) were filed under seal, entirely -- this much is easy to understand (click the below to enlarge):
Yep -- The United States is a "commercial" free-speech "zone", from coast to coast.
Now, this is from the Neutrogena Ultrasheer® marketing peoples' earlier filed counterclaims -- essentially urging that Schering-Plough cannot be heard to complain about allegedly false advertising, if the Coppertone® marketing people are making similarly-arguably-false claims, on their own:
. . . .97. These counterclaims are for false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and the state statutory and common law of unfair competition. Specifically, Schering has caused to be published and disseminated false and misleading advertisements that claim that only Coppertone NutraShield with Dual Defense provides both UVA/UVB protection and antioxidants that promote skin repair, when in fact Neutrogena and other sunscreen manufacturers market and sell such products. . . .
102. Schering and Neutrogena both market and sell sun protection products.
103. Schering markets and sells a sunscreen lotion called Coppertone NutraShield.
104. Beginning on or about March 2009, Schering began airing a television advertisement claiming that “Only NutraShield has Dual Defense. One, I get powerful sun protection and two, antioxidants that promote natural skin repair.” (Exh. A, attached).
105. On or about April 1, 2009, Schering ran a print advertisement claiming that “Only new Coppertone NutraShield has Dual Defense. . . . Dual Defense gives you: (1) Advanced UVA/UVB sun protection / (2) Nourishing antioxidants that help neutralize free radicals to help skin repair itself.” (Exh. B, attached).
106. Coppertone NutraShield® products are not the only products that provide both UVA/UVB sun protection and antioxidants that promote skin repair.
107. Sunscreen manufacturers other than Schering market and sell sun protection products that provide both UVA/UVB protection and antioxidants that promote skin repair.
108. For example, Neutrogena markets and sells Neutrogena UltraSheer® SPF 45, which provides both significant UVA/UVB protection and antioxidants that promote skin repair. Other sunscreen manufacturers likewise market sunscreens with similar characteristics. . . .
111. Schering’s advertising for its Coppertone NutraShield sunscreen lotion is false and misleading, and violates Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). . . .
Geez -- this may. . . Go. On. All. Summer. Long!