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Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. SmithKline Beecham Corp.

    Brief Fact Summary. Merck (Plaintiff) alleged that Smithkline’s (Defendant) television commercials were false and misleading as they intentionally exploited a public misperception.

    Synopsis of Rule of Law. An advertisement is false and misleading only if a substantial part of the audience holds the false belief and injury is suffered.

    Facts. Smithkline Beecham Corp. (Defendant) produced the antacid TUMS.  It started a television advertising campaign that compared the ingredients in TUMS to competing products.  Merck (Plaintiff), the maker of MYLANTA, claimed that the advertisement falsely represented the occasional ingestion of TUMS resulted in nutritional benefit and that the magnesium and aluminum contained in MYLANTA was unsafe for human consumption.  It sought to enjoin the ads.  The trial court dismissed all claims because Plaintiff had failed to demonstrate that the ads were either false or misleading.  Plaintiff appealed.
    Issue. Is an advertisement false and misleading if most of the audience is not misled and no injury is suffered?

    Held. (Walker, J.)  No.  An advertisement is false and misleading only if a substantial part of the audience holds the false belief and injury is suffered.  There can be no claim without injury.  Consumer surveys determine what message is actually received by the target audience.  The trial court reviewed the results of consumer surveys and found that the ads did not communicate that the aluminum in MYLANTA was either harmful or unsafe.  The trial court’s evaluation of the survey questions was not clearly flawed.  Affirmed.

    Discussion. False or misleading statements about the advertiser’s own products were prohibited under § 43 (a) of the Lanham Act.  In 1988 the Trademark Law Reform Act amended the law to include disparagement of another’s product.  False advertising covers both representations made to sophisticated business customers and to individual consumers.


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