Casting Stones

 make sure your glass house is strong before casting stones at a competitor.

Schering-Plough sued Neutrogena (PDF) claiming that Neutrogena’s sunscreen ads falsely claimed to offer the “best line of sun sport protection.” The judge agreed because a graph on the product suggested that UVA and SPF were different measures, which was false.

Notably, the judge found it irrelevant that the false information pertained to both products. Schering-Plough’s victory was short lived, however, because the judge also found that it lacked sufficient support for its advertisement that its Coppertone sun screen provided better coverage than Neutrogena’s sun screen. It seems that Schering-Plough had not tested Neutrogena’s product.

It is important to remember that advertisements need to be accurate and to have backup for all claims made. As this case shows, it is also important to review one’s own advertisements before bringing claims that a competitor’s advertisements are false.

What’s in a name: “Valverde” is not primarily merely a surname

To increase the likelihood of successful trademark registration with the U.S. Patent and Trademark Office, applicants are often advised to select marks that are fanciful, arbitrary or suggestive, and to screen those marks in order to identify other potentially conflicting marks. Applicants may also want to consider screening their marks to confirm whether the mark would be perceived by consumers as a surname.

Spumador S.P.A. filed an application to register the mark “Valverde” for mineral waters and other beverages, but the examining attorney refused registration of the application on the ground that the proposed mark was primarily merely a surname. On appeal, Board found:

 There was no support for Spumador’s argument that “Valverde” was recognized by consumers as a geographic location and, to the extent that there was any recognition of “Valverde” as a location, it could support the conclusion that “Valverde” would be viewed as a surname because locations are often named after individuals.

In short, the Board found the evidence of “Valverde” as a surname was greater than the evidence that the term had any other significance. However, the Board also found that “Valverde” looked and sounded like a foreign word rather than surname. Thus, it concluded that “Valverde” was not primarily merely a surname.

Although Spumador prevailed in this case, applicants should consider whether their potential marks would be perceived primarily as a surname by consumers.

Welcome to the first day of our blog devoted to nutrition law.  Nutrition law is one of my passions partly because I appreciate the role that nutrition plays in improving health and life, which I seem to be more concerned about today than I was ten years ago.  I was happy to see this optimism supported in a recent ScienceDaily article.  The rules and regulations that govern how nutrition products are made, marketed and sold is also a passion and just as important to the individuals and companies involved in this business.

We’re not the first or only blog to address topics related to nutrition law. I like to read Joel Rothman’s Nutritional and Dietary Supplement Law Blog, and my colleague Ken Odza maintains an interesting blog on Food Liability Law. But I hope that our passion and experience in this field will produce valuable content that will have you coming back often.