baking the soap scum composition onto the surface to be cleaned provides a realistic method of simulating the tenacity of in-home soap scum. Similarly, the soap scum composition used by P & G in its laboratory tests and in the commercial is a reasonably realistic recreation of typical in-home soap scum. P & G developed this formulation after extensive research that the court found highly persuasive.
To summarize, the court finds that P & G's soil composition and test conditions contained no deceptive devices or unfair procedures, and that Spic and Span's test conditions and soil compositions are representative of actual household soap scum. Plaintiff failed to demonstrate anything materially false or misleading in the methods and techniques used to produce the commercials.
B. The Commercials' "Claim" that Lysol is an Ineffective Cleaner, and Other Messages Allegedly Conveyed by the Commercials
L & F also claims that the commercials convey other messages, most notably that Lysol cleaners are ineffective. L & F's consumer survey evidence fails to establish that the commercials convey the message that Lysol is an ineffective cleaner to a statistically significant number of consumers. The court finds that the raw data produced by the survey failed to establish a message of ineffectiveness, and additionally finds that plaintiff's presentation of the survey procedures, language, and tabulation of statistical results undermines the credibility and weight attached to the relevant data. See Johnson & Johnson-Merck Consumer Pharm. Co. v. Smithkline Beecham Corp., 1991 WL 206312, at *6-*9 (S.D.N.Y.) (Oct. 1, 1991) (discounting probative value of survey results since questions were suggestive and repeated, and since expert performed overinclusive tabulation of results), aff'd, 960 F.2d 294; Warner-Lambert Co. v. Schering-Plough Corp., 1991 WL 221107 (S.D.N.Y.) (Oct. 15, 1991) (unreliability of closed ended survey questions that limit respondents' answers).
The court further notes that plaintiff has not demonstrated that Spic and Span "intentionally set out to deceive the public" through "deliberate conduct of an egregious nature." See Resource Developers, Inc. v. Statue of Liberty-Ellis Island Foundation, Inc., 926 F.2d 134, 140 (2d Cir. 1991). A finding of deceptive intent justifies a presumption that consumers are actually being deceived, relieving plaintiff of its burden of producing consumer survey evidence and shifting the burden of proof to defendant to demonstrate lack of consumer confusion. Id. P & G had a good faith belief in the validity of the superiority claims made in the commercials, and P & G based this belief on well-founded tests and scientific analysis. Even had plaintiff shown deceptive intent (which it failed to do), the court's examination of L & F's consumer survey would have satisfied defendant's burden of demonstrating lack of actual consumer confusion.
In the interests of a complete record, the court notes that L & F's tests failed to convince the court that Lysol is effective when used against P & G's more tenacious and more realistic soap scum composition. L & F did not present any evidence of the relative cleaning ability of Lysol Floor Cleaner, and thus cannot maintain a claim of product parity for Lysol Floor Cleaner. With regard to Lysol Deodorizing Cleaner and Lysol Basin, Tub and Tile Cleaner, as discussed infra, P & G has developed a soap scum composition representative of actual in-home soap scum. In addition, P & G's method of simulating the tenacity of soap scum stains on bathroom surfaces produces stains more tenacious than those used in L & F's tests, and the court finds that P & G's soap scum composition to be a more realistic facsimile of the soap scum stains actually found in showers and tubs than that used by Lysol.
L & F also failed to demonstrate that the commercials convey the message that Spic and Span achieves its cleaning results with one wipe, nor did plaintiff satisfy its burden of proof of demonstrating that the commercials convey the message that surfaces cleaned with the competing cleaner appear clean, but are really dirty.
Plaintiff has also failed to demonstrate that consumers believe that they are watching the actual cleaning process. L & F's consumer survey does not indicate that consumers believed that they were viewing the actual cleaning competition, nor did L & F introduce any other persuasive evidence that the commercial conveyed this impression. Even assuming that the commercials did imply that they depicted the actual cleaning efforts, L & F has failed to demonstrate how this perception would be material to a consumer.
C. Denial of Preliminary Injunctive Relief
At the conclusion of the trial, plaintiff moved for a preliminary injunction against further broadcasts of the commercials. Ruling from the bench, the court denied the motion. Having observed the witnesses and exhibits presented by the parties at trial, the court believed that plaintiff had demonstrated neither a likelihood of success on the merits nor a balance of hardships tipping decidedly in plaintiff's favor. See Castrol v. Quaker State, 977 F.2d at 62. This opinion summarizes the court's reasons for believing that plaintiff had not demonstrated likelihood of success on the merits. The court further notes that the fact that defendant was broadcasting two of these commercials as an integral part of the product launch of two new consumer products, introduced to a highly competitive market only months before, tipped the balance of hardships strongly in favor of the defendant.
D. Plaintiff's State Law and Common Law Unfair Competition Claims
The findings of the court infra fail to support plaintiff's claim under either New York General Business Laws §§ 349-350 or under common law unfair competition principles. Plaintiff has failed to demonstrate any act or practice that was misleading to consumers. See Coors Brewing Co. v. Anheuser-Busch Cos., 802 F. Supp. 965, 975 (S.D.N.Y. 1992) (§§ 349-350 claims). Nor has plaintiff proven the elements of a product disparagement claim, having failed to demonstrate either a false statement, malice or special damages. See Fashion Boutique, Inc. v. Fendi USA, Inc., 1992 WL 170559 (S.D.N.Y.) (July 2, 1992).
The complaint is dismissed in its entirety. See JPTO, Undisputed Facts P 7. This Opinion and Order constitutes the court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).
Dated: New York, New York
February 24, 1994
CHARLES H. TENNEY
United States District Judge