Kramer Levin Wins Motion for Client Procter & Gamble to Modify a Lanham Act False Advertising Permanent Injunction

In a significant victory for our client Procter & Gamble, and as reported on the front page of the New York Law Journal, on February 6 United States District Judge William Pauley granted P&G's motion to modify a Lanham Act false advertising permanent injunction concerning P&G's advertising for its Tampax Pearl tampon product. After a jury verdict in Playtex's favor in 2003, the Court had issued a permanent injunction enjoining P&G from making claims that its tampon product Tampax Pearl provided superior leakage protection compared to Playtex's Gentle Glide product. Following a three-day evidentiary hearing, the Court granted the unusual remedy of modifying the injunction, holding that P&G's product had sufficiently changed from the version P&G marketed in 2003 that was the subject of the injunction, and that P&G's tests proved that its product was now superior to Playtex's with respect to leakage protection. The Court also noted that First Amendment and public interest implications of allowing truthful commercial speech weighed in favor of modifying the injunction.

Attorneys Harold Weinberger, Jonathan Wagner, Jennifer Haber and Tobias Jacoby worked on the matter.