Once again, as beach weather approaches around the US, the "Battle Royale" burns just a little crispier. Last month, I mentioned that this one round might go in favor of Coppertone's Ultra-Sport®. Overnight, it has -- as the very able Judge Robinson has granted partial summary judgment to New Merck's subsidiary (formerly known as Schering-Plough). From the order, then -- there will be a teleconference to discuss settlement, or in the alternative, discovery schedules on June 11, 2010:
. . . .Defendant's message is unambiguous and explicit, insofar as it provided the public with a specific formula for Helioplex®, and its labeling and advertisements for DEHN-free 100+ Product clearly represented that Helioplex was present. Novartis, 290 F.3d at 586-87. In the absence of Helioplex, defendant's labeling and advertisements were literally false. Id. As such, plaintiff need not provide evidence of consumer confusion; stich confusion is presumed. See Castrol, 987 F.2d at 943 (citing Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 227 (3d Cir. 1990); see also Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384, 477 (D.N.J. 2009) (collecting authority).
10. Based on the foregoing, the court grants plaintiffs motion for partial summary judgment to the extent that the labeling and advertising at issue, linking DEHN-free 100+ Product and Helioplex®, is literally false and, therefore, violates section 43{a) of the Lanham Act and the Uniform Deceptive Trade Practices Act. At this juncture, the scope and duration of defendant's violation is unclear. The parties have not yet engaged in discovery. Although it appears as though defendant no longer manufactures DEHN-free 100+ Product, its violation may be ongoing insofar as such product remains on store shelves. Plaintiff indicates that it seeks injunctive relief, an order compelling defendant to publish corrective advertising or a press release, and attorney fees. Defendant understandably requests that the court defer consideration of these issues absent discovery and briefing.
IT IS FURTHER ORDERED that:
11. A telephonic scheduling conference to be initiated by plaintiff's counsel shall be held on Friday, June 11, 2010, at 9:00 a.m. See D. Del. LR 16.1. . . .
Ah, summer's tanning -- and litigating -- season arrives, now in earnest. There are still pending many claims by J&J's Neutrogena unit -- that New Merck's Coppertone itself also engages in false advertising prohibited by the Lanham Act. I'll keep you posted.
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