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L & F PRODS. v. P&G

February 24, 1994

L & F PRODUCTS, a division of STERLING WINTHROP, INC., Plaintiff,
v.
THE PROCTER & GAMBLE COMPANY, Defendant.


TENNEY


The opinion of the court was delivered by: CHARLES H. TENNEY

TENNEY, District Judge,

 Plaintiff L & F Products ("L & F"), manufacturer of Lysol brand cleaning products, brings this suit against defendant Procter & Gamble Co. ("P & G"), manufacturer of Spic and Span brand cleaning products, regarding a current Spic and Span television advertising campaign involving three commercials. L & F claims that the commercials are false and misleading within the meaning of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and constitute unfair trade practices under New York General Business Laws §§ 349-350 and common law unfair competition. L & F seeks: (1) an injunction against further broadcasts of the commercials, (2) an order that P & G broadcast corrective advertising, and (3) further proceedings to determine monetary damages.

 L & F challenges three separate commercials for Spic and Span brand cleaners. Saatchi & Saatchi, Spic and Span's advertising agency, developed these three advertisements together, and they each share common themes, style, and methods of presentation. Each commercial shows a Spic and Span cleaner used side by side with an unidentified cleaner on identical dirty household surfaces. Following the cleaning, the surfaces cleaned by Spic and Span and by the unidentified competing product both appear clean. The commercials then show some form of white fabric being rubbed against the "cleaned" surfaces. Each commercial ends by showing that the fabric rubbed over the surface cleaned with Spic and Span retains its bright white color, but the fabric rubbed over the surface cleaned with the competing product has become dirty. The commercials are almost entirely visual in content, with only a very brief spoken voiceover at the conclusion of each commercial.

 L & F claims that the commercials unfairly portray the cleaning effectiveness of Lysol Basin Tub and Tile Cleaner and Lysol Deodorizing Cleaner through "false images" and "sham demonstrations." Pl. Pretrial Br. at 3. L & F also alleges that the commercials present a false claim that Spic and Span products clean bathroom soap scum and hard water stains better than the Lysol cleaners, and that the commercials present a false and misleading claim that the Lysol cleaners "do not clean bathroom surfaces at all or at most hardly at all." Complaint PP 16-17.

 All damage claims have been bifurcated from the current claims for injunctive and other equitable relief. Joint Pre-Trial Order ("JPTO"), Undisputed Facts P 7. The case was originally before Judge Cedarbaum, who presided over pretrial matters. Judge Cedarbaum transferred the case to these chambers on October 27, 1993. The court held a bench trial on November 15-18, 1993, and received extensive pretrial and posttrial briefs from each party.

 The court finds that the advertisements are not false or misleading within the meaning of § 43(a) of the Lanham Act and do not constitute state or common law unfair competition, and dismisses L & F's complaint.

 FACTS

 1. The Commercials

 The second commercial, which this opinion will refer to as the "Towels in the Steam Bath" commercial, uses a nearly identical setting and the same accompanying music as "Socks in the Shower." The commercial opens in another all-white room, empty except for the presence of two enclosed, tiled shower stalls with seats. A custodian stands in front of each shower stall. The custodian standing on the right holds a bottle of Spic and Span Bathroom Cleaner, while the custodian on the left holds a bottle of an unidentified cleaner. They enter the dirty shower stalls, apply their respective cleaners to sponges, and begin cleaning. Only one wipe of the sponge is shown in each stall. The commercial cuts to the custodians having finished the job. They leave the stalls, nod at each other, and leave the scene. Two men, clad only in bathtowels, then enter the stalls, one in each stall. They sit reading newspapers in the stalls while steam rises. A closeup shows each man's rear moving along the seat in the stall. The men leave the stalls and display their towels. The towel on the rear end of the man who was in the stall cleaned with Spic and Span is a clean white, while the towel of the man who was in the stall cleaned with the unidentified cleaner is now stained. A voiceover states: "Get the dirt that other bathroom cleaners can leave behind. Introducing new Bathroom Liquid from Spic and Span." A shot of the Spic and Span logo concludes the commercial. Pl. Exh. 2.

 The third commercial, which this opinion will refer to as the "Gloves on the Bathroom Floor" commercial, begins in another all-white room with the same type of background music as the other commercials. Two custodians stand in the room on separate sections of a dirty white hard floor surface. The custodian on the left is almost twice the height of the custodian on the right. The custodian on the right holds Ultra Spic and Span cleansing powder, and the custodian on the left holds a bottle of an unidentified liquid cleaner. They begin to clean, mopping the floor many times. A voiceover states: "Unlike liquid cleaners, one little scoop of new Ultra Spic and Span cuts dirt down to size. . . . And costs less every time." The custodians then put on white gloves and wipe their gloves on their respective floors. The glove that wiped the side cleaned with Spic and Span is a clean white, while the glove that wiped the side cleaned by the competitor is stained. The commercial concludes with a product shot of Ultra Spic and Span and a voiceover--"After all, it's not clean until it's cleaned with Spic and Span." Pl. Exh. 2.

 "Socks in the Shower" and "Towels in the Steam Bath" currently air on national network and cable television and in local spot markets. JPTO, Undisputed Facts P 6. "Gloves on the Bathroom Floor" has been aired only in a test market in Boise, Idaho, and has not aired nationally. Id.

 2. The Products

 P & G formulated Spic and Span Basin, Tub and Tile Cleaner and Spic and Span Bathroom Cleaner specifically to address the problem of bathroom soap scum and hard water stains. These two products utilize the same chemical formulation. Trial Transcript ("Tr.") 514-15. Spic and Span Basin, Tub and Tile Cleaner is a liquid dispensed as a spray, while Spic and Span Bathroom Cleaner is a liquid poured directly from the bottle. Ultra Spic and Span is a powder designed to clean hard floor surfaces throughout the home.

 The chemical formulation of Lysol Deodorizing Cleaner differs fundamentally from the chemical formulation of Spic and Span Basin, Tub and Tile Cleaner and Spic and Span Bathroom Cleaner. Tr. 225. Lysol Deodorizing Cleaner is an all-purpose cleaner, frequently used in the bathroom. Tr. 29. Lysol Deodorizing Cleaner dates from the mid-1960's, when it was specifically formulated to disinfect, and L & F recently reformulated Lysol Deodorizing Cleaner to be more effective against soap scum. Tr. 29-34. Lysol has also introduced Lysol Basin Tub and Tile Cleaner, a product specifically formulated to remove soap scum and mineral deposits from household surfaces. Tr. 41.

 P & G does not dispute L & F's claim that the commercials used Lysol Deodorizing Cleaner as the competing product. The "competitor" bottle used in the commercials is in the shape of the Lysol bottle; the competitor bottle used in the commercials contained Lysol Deodorizing Cleaner; Lysol was used to clean in the commercials; and Spic and Span's documents discuss using a Lysol lookalike in the commercials. P & G's presentation at trial and in its briefs did not dispute Lysol's standing to bring this suit on the basis of the fact that the commercials did not mention Lysol by name or depict the Lysol logo.

 3. Production of the Commercials

 The commercials display the results of off-screen cleaning competitions between Spic and Span and a competing cleaner. L & F claims that P & G's technicians and actors performed these competitions in an unfair manner. Two aspects of the production of the commercials are relevant to plaintiff's claim: the fairness of the procedures used by the production team during the cleaning competitions and the performance of the various "white glove tests" by the actors.

 P & G's method of applying soap scum stains and achieving a realistic tenacity precluded applying the soap scum to an entire bathtub or shower stall. Instead, P & G applied the stains to porcelain templates, and then placed the templates in the tubs and showers shown in the commercial. Tr. 86. Technicians cleaned the templates (and the floor shown in the "White Gloves on the Bathroom Floor" commercial) in the studio.

 Plaintiff failed to introduce persuasive evidence that the technicians used more effort while cleaning with Spic and Span than used while cleaning with Lysol. L & F stipulated that the film production crew used equal cleaning effort on the Spic and Span and competitor sides in the tubs shown in the Socks in the Shower commercial and on the floor surfaces shown in the Gloves on the Bathroom Floor commercials. Tr. 126-28. Plaintiff produced no persuasive evidence that the technicians used unequal effort while cleaning the surfaces in the Towels in the Steam Bath commercial.

 In addition, plaintiff failed to persuade the court that the actors performed any of the white glove tests in a deceptive or misleading manner. Our analysis of the issue is greatly facilitated in this case by the fact that P & G videotaped the processes involved in filming these commercials. As a result, the actual white glove tests performed between the products, although not appearing in the thirty second commercials shown to consumers, were available for the court to review. The availability of visual and audio records of the production of the commercials greatly assists the court's ability to determine the fairness of the product demonstrations, and helps establish P & G's good faith.

 4. The Relative Cleaning Effectiveness of the Products

 L & F responds to Spic and Span's claim of product superiority with its own laboratory tests. *fn1" Plaintiff claims that these tests demonstrate parity between the Lysol and Spic and Span cleaners against bathroom soap scum. However, the laboratory conditions and test methodology used by L & F differ from those used in P & G's laboratory tests in three material aspects: (A) The soap scum soil composition used by L & F does not include components used by P & G; (B) L & F does not bake the soap scum composition onto the surface to be cleaned, a procedure used by P & G; and (C) L & F's procedure for cleaning a surface and grading its cleanliness does not adequately allow competing cleaners to demonstrate that they are more effective than Lysol.

 A. The Composition of Soap Scum

 In their respective tests comparing the relative cleaning effectiveness of Lysol and Spic and Span bathroom cleaners, the two manufacturers utilize different compositions of soap scum. Soap scum forms through the chemical reaction of soap with hard water, creating a calcium stearate precipitate that adheres to bathroom surfaces. Testimony established that the precise composition of soap scum actually found in American homes may vary widely. Tr. 234-35. In fact, the composition of soap scum stains found in the bottom of a bathtub may even vary from the composition of soap scum stains found along the sides of the tub.

 Both P & G and L & F have expended substantial resources to formulate laboratory soap scum compositions that they believe are realistic substitutes for actual in-home soap scum. These efforts have led P & G and L & F to arrive at different conclusions. As a result, the laboratory soap scum composition used by Spic and Span to test cleaning effectiveness (and used in the commercials) differs substantially from the composition used by Lysol.

 The fact that competitors use different laboratory soap scum compositions is understandable given the variations found in actual in-home soap scum. As L & F's own witness agreed, there is no single "typical" bathroom soil or soap scum stain, and there is professional disagreement as to the most representative composition for soap scum stains. Tr. 256-58, 290-91.

 P & G satisfied the court that it made its choice of a laboratory soap scum composition on a well-founded, highly reliable and accurate scientific basis, and that this choice was not made for any deceptive purpose. *fn2" Several P & G employees testified in support of the soil composition used in the commercials. The court found these witnesses highly credible. These witnesses discussed the tests relied upon by P & G to analyze actual in-home soap scum stains, P & G's development of its laboratory soap scum, and P & G's efforts to confirm the laboratory findings with in-home tests. P & G's witnesses and documentary evidence satisfied the court that Spic and Span's soap scum composition is representative of actual in-home soap scum, and that P & G has a well-founded scientific basis for the particular formulation chosen for the product comparisons.

 B. Baking Soap Scum Onto the Surfaces to be Cleaned

 In addition to using a different soap scum composition, L & F's method for simulating the tenacity of bathroom soap scum differs from Spic and Span's method. The method of applying a soap scum composition to the surface to be cleaned substantially affects the tenacity of the soap scum composition. Spic and Span chooses to simulate the tenacity of bathroom stains by baking the soil composition onto the surface to be cleaned. *fn3" L & F's procedures for testing the effectiveness of soap scum do not bake the ...


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