American consumer deemed real loser in Lanham Act dispute
Schering-Plough Healthcare Products, Inc. v. Neutrogena Corporation, Civ. No.09-268-SLR, April 8, 2010.
Robinson, J. The Court finds both parties’ advertising to violate the Lanham Act and the DTPA.
The parties are manufacturers of sunscreen products: plaintiff manufactures Coppertone®-branded sunscreens; and defendant manufactures Neutrogena®-branded sunscreens. Plaintiff alleges that defendant has released multiple advertisements containing false and misleading statements in violation of the Lanham Act and the Delaware Deceptive Trade Practices Act. Defendant counterclaims that plaintiff has released similar print advertisements and television commercials containing false and misleading claims in violation of the Lanham Act and the DTPA. Having the benefit of a bench trial, the Court reverses its initial finding stated in its preliminary injunction opinion on literal falsity with respect to the differentials between the combined SPF and UVA bars correlating to Coppertone Sport® and Neutrogena Ultimate Sport®. Due to the predominancy of UVB in the SPF measurement, SPF is commonly understood to refer to UVB rays. There is no dispute, however, that at least 10% of a "SPF" measurement correlates to UVA protection. Defendant's ad does not equate SPF with UVB alone, but it is literally false because it provides a separate "UVA" quantification which is neither an accurate description of protection nor completely independent of the SPF value. Turning to defendant’s claims, the Court agrees with defendant that the "better coverage" claim of the Coppertone Sport® commercial is an establishment claim that is not supported by sufficiently reliable tests. The information conveyed in the commercial is derived from testing of other product lines and did not represent actual data regarding the products in the advertisement. The Court finds that there are too many problems with plaintiff's testing for it to meet the "sufficiently reliable" standard. Having found both parties’ advertisements to violate the Lanham Act and the DTPA the Court notes that “it is the American consumer who ultimately ends up the real loser in these advertising wars.”
