New Merck's Coppertone Ultra-Sport® Wins Partial Summary Judgment -- Lanham Act Claim

In the federal District courts of Delaware, Johnson & Johnson's Neutrogena Ultra-Sheer^® sunscreen line yesterday lost partial summary judgment to legacy Schering-Plough's Coppertone^® line of similar products, on a claim that the J&J advertising was literally false (and thus a violation of 15 U.S.C. § 1125(a), a part od the federal Lanham Act) -- under a ruling entered by the emminently able Judge Sue L. Robinson:

. . . .In prior litigation before this court and in prior advertising campaigns, defendant used "Helioplex^®" to describe a system specifically comprised of avobenzone, diethylhexyl-2, 6-naphthalate ("DEHN"), and oxybenzone. (D.I. 19 at 2) For a time, defendant substituted DEHN with another photostability agent, octocrylene, in its new "Ultra Sheer Dry-Touch Sunblock SPF 100+" sunscreen ("the 100+ Product"). (D.1. 18 at 7) Defendant did not issue corrective advertising or otherwise notify consumers of the change in active ingredients and continued to advertise with the Helioplex® mark. (D.1. 19 at 3) Therefore, this court granted partial summary judgment of liability on plaintiff's § 43 claim for false advertising, finding that: "(1) [d]efendant expressly defined Helioplex to the consuming public; (2) [d]efendant's message was unambiguous and explicit, insofar as it provided the public with a specific formula for Helioplex; (3) [d]efendant has not indicated that it subsequently provided the public a contrary or expanded representation; and (4) there is no dispute that the 100+ Product, for a certain period of time, did not contain DEHN". . . .

The clear implication. . . is that consumer reaction is immaterial when the asserted advertisement is literally false. In other words, "[i]f a plaintiff proves a challenged claim is literally false, a court may grant relief without considering whether the buying public was misled. . . ."

For the reasons stated, defendant's motion for reconsideration is denied. . . .

In such matters, damages are presumed, and will be assessed by the Judge in a subsequent ruling, if the companies don't agree to settle (and pay a privately negotiated amount) shortly. In either case -- ordered or agreed, and as to either or both of these behemoths -- the amount of the payment will not be material to either company.