Friday, June 26, 2009

A Grin-Break -- From the Sunscreen Battle Royale -- On a Hot Friday


As most of you know, Schering-Plough (the maker of Coppertone) has sued J&J's Neutrogena unit (seeking, after depositions, a preliminary injuction -- a gambit upon which I personally think Schering-Plough is highly unlikely to prevail), claiming that some of Neutrogena's advertising for its sunscreens is "false and misleading". Of course, Neutrogena not only disputes those allegations, but has, just this week, re-asserted that some of Schering's Coppertone advertising is -- itself -- both "false and misleading", under the federal Lanham Act, as well as local Delaware law (the suit is pending in the federal District Courthouse in Delaware).

What's good for the goose, is better for the gander, it would seem, eh? In any event, at about page 13, of the 19 page Neutrogena filing (full 19 page PDF file), this appears:

. . . .123. Finally, the commercial as a whole conveys the false and misleading message that Coppertone Sport sprays provide better sun protection compared to Neutrogena Ultimate Sport sprays. That claim is false even according to Schering. Schering’s papers filed in this action contend only that Coppertone Sport’s highest SPF products provide at most parity protection compared to Neutrogena’s Ultimate Sport products. And on average, Neutrogena’s Ultimate Sport products, including the spray products, provide better sun protection than do Coppertone’s Sport products.

124. The Coppertone Sport commercial is being aired during the very first selling season for the Neutrogena Ultimate Sport line. Neutrogena has invested in Ultimate Sport years of research and development, significant advertising expenditures, and the time and effort of many Neutrogena employees and executives. A significant portion of that investment could be lost if Schering is not barred from making its false and misleading claims about the Neutrogena Ultimate Sport line.

125. Unless and until Schering is ordered to cease making its false and infringing advertising claims, Neutrogena stands to suffer a loss of sales, hard-earned reputation, and consumer confidence that it may never be able to recoup. . . .

"Ouch -- that's kinda' lobster red, there, Missy!" An aside, here -- do ya' think it matters, at all, that J&J didn't agree to "play ball" with CEO Hassan, on Remicade and Simponi rights outside the US -- and thus, this Coppertone arguable "strike suit" was brought -- almost two full years after most of the ads Schering now complains about were first introduced into the stream of interstate commerce? I do.

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