Tuesday, December 18, 2007

Philips Alleges False Advertising of Braun Pulsonic Shaver

Philips Sues P&G - Philips Appliances filed suit on Monday against Procter & Gamble for false-advertising regarding its Braun Pulsonic electric razor in violation of the Lanham Act, 15 U.S.C. § 1125, a federal statute prohibiting material false or misleading statements of fact. See Philips Domestic Appliances & Personal Care Co. v. Braun GMBH & Procter & Gamble Co., No. 07-cv-11290 (filed Dec. 17, 2007 S.D.N.Y.).

Questionable Claims by Bruan - Braun claims that Braun shavers work better than Norelco Smart Touch razors due to innovative sonic pulses that expose and shave more hair. A Braun advertisement shows the two razors submerged in water, and the Pulsonic causing ripples but not the Smart Touch. The complaint states that there is no evidence that the ripples improve shaving, and that the technology not innovative or revolutionary as advertised. It also alleges that Braun's share of the electric shaver market declined over 15% from 2004 to Q2 2007.

Comparison to Gillette's M3 Power Razor Claims - Phillips compared the Pulsonic's claims to claims previously made by Gillette that its M3 Power vibrating razor shaved closer. A federal district court in Connecticut found that Gillette's claims were false because they exaggerated the effect of the razor's vibrations. The court also found that Schick would suffer irreparable harm, and it granted a preliminary injunction, stating that "the difficulty of accurately determining what monetary damages will compensate Schick for its harm, support a finding that any such harm is, indeed, irreparable." See Schick Mfg., Inc. v. Gillette Co., 372 F. Supp. 2d 273, 284 (D. Conn. 2005).

Men's Health Reader Survey - The advertisements also claim that the Braun Pulsonic razor was voted "best electric shaver" by 9 out of 10 people in a "Men's Health Reader Panel Survey," which the lawsuit contends was actually a sweepstakes in which Braun gave participants free $250 Pulsonic shavers.

Potential Damages - Even if Philips prevails on its claim against Braun for injunctive relief, it may have difficulty prevailing on its claim for damages. The Second Circuit, like most circuits, requires a Lanham Act plaintiff to prove that the defendant's conduct caused actual confusion or deception and caused actual harm. See Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger, U.S.A., Inc., 80 F.3d 749, 753 (2d Cir. 1996). A plaintiff entitled to injunctive relief is not necessarily entitled to damages. Id. This standard seems overly stingy, considering that plaintiffs often spend large sums on corrective advertising campaigns and other associated costs.

Coverage about the lawsuit is available here, here, and here.


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