Law & Advertising by Fueroghne Dean K.;

Author:Fueroghne, Dean K.;
Language: eng
Format: epub
ISBN: 9781442244894
Publisher: Rowman & Littlefield Publishers
Published: 2017-01-29T00:00:00+00:00

Labeling and Its Relationship to the Lanham Act

While most of the cases that we’ve looked at here have arisen as a result of problems with advertising, the Lanham Act also applies to labeling. In fact, the statute specifically provides:

Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

A Regular Example Keeping this in mind, what if you wanted to make reference to a competitor’s trademark on your own product label? You can, if your label reference is truthful, according to a decision in C. D. Searle & Co. v. Hudson Pharmaceutical Corp., 715 F.2d 837 (3rd Cir. 1983).

The case was brought under Section 43(a) of the Lanham Act and involved a vegetable laxative marketed and sold by two competitive pharmaceutical firms. Since 1934 Searle marketed a laxative product containing psyllium hydrophilic mucilloid using the registered trademark METAMUCIL. In 1964 Hudson Pharmaceutical Corp. marketed a laxative containing the same psyllium hydrophilic mucilloid, under the registered trademark name REGACILIUM.

Hudson had developed a comparative advertising campaign that ran for many years, not only in trade publications but also in point-of-purchase materials. Since 1972 Hudson had included in its comparative ads the claim that REGACILIUM is “Equivalent to METAMUCIL.”

Until 1980 both of these companies’ competitive products were packaged very differently. In that year, however, Hudson changed its product’s packaging to resemble the METAMUCIL packaging. In addition to the ads, Hudson’s new package label contained the statement Hudson had long used in trade catalogs and point-of-purchase advertising: “Equivalent to METAMUCIL.”

The new packaging with its comparative statement brought on the lawsuit. Searle sued Hudson to halt any mention of METAMUCIL on the REGACILIUM container. The court held that Hudson could not make further reference to METAMUCIL on the REGACILIUM container, stating:

Unless the defendant’s container is changed such that “METAMUCI” appears in type no larger than the word “Equivalent” and in green letters on the white background. Defendant shall place an asterisk next to the METAMUCIL mark and shall state adjacent to said mark the statement “a product of G.D. Searle, not a Hudson product.”

It was “proper for Hudson, on its REGACILIUM container, to truthfully characterize REGACILIUM as ‘Equivalent to METAMUCIL.

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