Remember that at a hearing last week, Schering-Plough sought a preliminary injunction against portions of Neutrogena's sunscreen advertising -- after taking the depositions of Neutrogena's scientific expert (and after Neutrogena had taken the deposition of Schering's expert). I'd say the below excerpt, filed with the court overnight, just about blisters away any meaningful chance that Schering-Plough will win its much sought-after preliminary injunction.
Oh. Right. And did I mention that Neutrogena is owned by Johnson & Johnson? Do you think that Schering's ire over being hauled into mandatory, binding arbitration, this summer, on non-US Remicade and Simponi sales rights, might have a little something to do with why Schering-Plough -- the makers of Coppertone -- are so vigorously pursuing these apparently rather-marginal Lanham Act claims? I'll let these intelligent readers assembled here decide about that.
In any event, here is the crux of what Neutrogena's lawyers just asserted, in a post-hearing memorandum of law, in Delaware's federal district court:
. . . .4. The scientific difference of opinion in this case does not warrant preliminary injunctive relief
As the Court noted at the close of the hearing, pure science "rarely has one answer," and "different scientists [and] different groups describe this science in different ways." Tr. 166. It is inconceivable that Neutrogena could be held liable under the Lanham Act for false statements in its print ad merely for following what is clearly the FDA and industry standard in communicating to consumers information concerning the parties’ average SPF and PFA scores.
Certainly Neutrogena’s ads could not be held literally false when the most that Schering has shown is that its scientist disagrees with the meaning of the terms used by Neutrogena in its ad. See Borden, Inc. v. Kraft, Inc., 224 U.S.P.Q. 811, 823 (N.D. Ill. 1984) (denying Lanham Act preliminary injunction motion; "[i]n a situation such as this, where the best that can be said about plaintiff’s case is that ambiguities exist, plaintiff has not sustained its burden of proof"); Avins v. Widener College, Inc., 421 F. Supp. 858, 862 (D. Del. 1976) ("a preliminary injunction will not be granted where the application and affidavits reveal that plaintiff’s contentions as to issues of fact and law are "seriously disputed"). . . .
Oh. Well. It will still be a long summer in Kenilworth -- with, or without, a TRO, or preliminary injunction -- so slather on your sunscreen, folks.
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