SW Legal Educational Publishing

Comparative Ad Backed by Evidence Not to Be Halted
Description Playtex's request for a preliminary injunction against ads by Gerber that stated that Gerber's spill-proof child drinking cup was superior in certain respects to the market-leading Playtex cup denied because the ad does not appear to be false or misleading.
Topic Consumer Protection
Key Words Lanham Act, Unfair Competition
C A S E   S U M M A R Y
Facts Playtex has "spill proof" cups for children since 1995. Over $60 million were sold in two years, representing 70 percent of the market. Gerber introduced its "Easy-Sip, Spill Proof Cup," with an ad showing a competitor product that does not work as well as Gerber's cup. The Playtex cup is not mentioned by name, but it is easy to see that is what is used in the ad. Playtex moved for a preliminary injunction against Gerber, alleging the ad violates the Lanham Act and common law unfair competition.
Decision Motion denied. To win a Lanham suit, plaintiff must show "that an advertisement is either literally false or that the advertisement, though literally true, is likely to mislead and confuse consumers." Playtex is not mentioned by name. The assertion that the Gerber cup is easier to suck from is backed by an independent laboratory test. Playtex does not dispute the results of the test, which indicate that small children may have an easier time using the Gerber cup. Since the ad does not appear to be false or misleading to consumers, Playtex is unlikely to succeed on the merits.
Citation Playtex Products, Inc. v. Gerber Products Co., F.Supp.--- (1997 WL 678169, S.D., N.Y.)
or
981 F. Supp. 827 (S. D. N. Y., 1997)

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