The trial date in this massive federal Lanham Act suit-and-countersuit (underway in the Delaware district courts) resembling nothing so much as a celebrity cage-match now draws near. Last night, the parties filed a proposed joint pre-trial order. In October 2009, each of J&J's Neutrogena group, and Merck's Schering-Plough (Coppertone) unit agreed to cease the complained-of adverts, on both sides. But they agreed to do so only until January 31, 2010. I doubt the action will be the subject of a final dispositive order by then. So, the battle may begin anew, as winter cruise season gets underway, in earnest. [Both sides have also agreed to forego money damages, preferring to accept banishment/removals of the allegedly offending ads, instead.]
From the final pre-trial papers, then:
[According to J&J's Neutrogena,] in its television advertisement for Coppertone Sport, Schering [now New Merck] makes three false claims: (i) Neutrogena Ultimate Sport spray users cover themselves with 28% chemical propellant, (ii) Coppertone Sport sprays provide better sun protection than Neutrogena Sport sprays, and (iii) studies prove that Coppertone Sport sprays provide better coverage than Neutrogena Ultimate Sport sprays. . . .
. . . .when a party’s advertising refers to studies or data — a so-called "establishment claim" — the challenger can satisfy its burden of proving falsity by "demonstrat[ing] the tests relied upon [] do not establish the proposition for which they are cited." Syncsort Inc. v. Sequential Software, Inc., 50 F. Supp. 2d 318, 341-42 (D.N.J. 1999), or that such tests are "not sufficiently reliable to permit one to conclude with reasonable certainty that they established the claim made." McNeil-P.P.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir. 1991). . . .
[In response,] Schering alleges that Neutrogena’s advertising is false in three respects: (i) Neutrogena falsely asserts that only products with Helioplex provide protection from UVA and UVB rays, even though the literal words of Neutrogena’s ads state no such thing [(!)]; (ii) Neutrogena falsely asserts that Neutrogena Ultimate Sport is the “Best line of sport sun protection,” and (iii) a bar graph in Neutrogena’s advertising communicate[s] falsehoods. In denying Schering’s motion for a preliminary injunction addressed to these claims, the Court already has determined that none of these asserted messages is a literal falsehood under the Lanham Act. See Schering Plough v. Neutrogena Corp., 642 F. Supp. 2d 304 (D. Del. Aug. 5, 2009) (the "Order"). In the five months since the Court issued the Order, nothing has changed that would render these claims literally false, and Schering has conducted no survey addressed to the Helioplex claims in Neutrogena’s advertising. Schering recently produced a consumer survey that purports to show that consumers took away the message from a Neutrogena Ultimate Sport print advertisement that Neutrogena Ultimate Sport is superior to or more durable than Coppertone Sport. Schering’s survey effectively has no control, is not addressed to the relevant issues, and otherwise fails to establish that Neutrogena’s advertising communicates any implied false messages. . . .
Should be grin-inducing. . . if not tan-producing. Why? Well, the court has already signaled it likely won't side with New Merck -- as noted above ". . .in denying Schering’s motion for a preliminary injunction addressed to these claims, the Court already has determined that none of these asserted messages is a literal falsehood under the Lanham Act."As I have repeatedly opined, I think this is but a straw-man/proxy for the fight (between the same parties, and filed at about the same time, to boot!) over $8 billion in sales of Remicade and Simponi (via J&J's Centocor unit -- previously distributed outside the US by Schering-Plough), now deep in arbitration proceedings.
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