Issues found in marketing and promotion in the chemical industry

1. IP ISSUES IN MARKETING AND
PROMOTION IN THE
CHEMICAL INDUSTRY
BY:
KIRBY DRAKE

2. “Advertising is the modern substitute for
argument; its function is to make the
worse appear the better.”
- George Santayana

3. IP Rights in Advertising
• Copyright
• Trademark
• Unfair Competition
• Patents
• Trade Dress
• Publicity or Privacy Rights

4. Use of Another’s Trademark in Ads
• Use ads to inform consumer, not
unfairly attack competitor
• Mark competitors’ trademarks
with the trademark symbol (TM or
®)
• Cannot suggest competitor
endorses or sponsors product
advertised
• Cannot take unfair advantage of
reputation of competitor’s
trademark to promote own
business

5. Comparing Products in Ads
• No derogatory or defamatory
comparisons
• Do not take unfair advantage of
reputation of competitor’s trademark
to promote own business
• Claims of comparison must be
completely true and accurate
• Opinions should never be expressed
as facts
• Cannot compare and cause
confusion with competitor’s products

6. False Advertising and Pharmaceuticals
• Can sue competitor if promotional claim likely to
mislead customers
• Not limited to traditional advertising
• Statements to physicians
• Direct-to-consumer materials

7. False Advertising and Pharmaceuticals
• Johnson & Johnson “Night Time Strength”
Mylanta®
• Procter & Gamble “24 Hours” relief with Prilosec®
• Pharmacia TV campaign for Nicotrol® –
superiority over Nicoderm®
• Rhone-Poulenc ad for Dilacor XR®

8. False Advertising and Pharmaceuticals
• Consumer class action lawsuits
• Pfizer and Listerine®
• Department of Justice criminal investigations
• Eli Lilly and Evista®
• Governmental entity lawsuit
• Glaxo and Avandia®

9. “Never eat anything you’ve seen
advertised.”
- Michael Pollan, In Defense of Food

10. False Advertising and Infant Formulas
• Enfamil advertising suggests PBM formulas
inferior and will cause poor eye/brain
development
• Nutritional claims concerning two fats (DHA and
ARA) – from same source
• False advertising lawsuit
• $13.5 million jury verdict
• Enjoin false statements about competitor’s formula

11. Dannon, Activia, and Probiotics
• Advertisements for Activia® yogurt
promoting probiotic bacterial cultures
• No proof of superior health benefits
• $35 million settlement of false
advertising lawsuit
• Settlement of class action lawsuit
($100 to individual consumers who
were misled by “health claims”)

12. Splenda® Lawsuits
• False advertising allegations
• “Made from sugar, so it tastes like sugar”
• “Good for the whole family”
• Settled lawsuit during trial against Merisant
(maker of Equal®)

13. Corn Sugar – Advertising and FDA
• Lawsuit seeking to end corn-refining industry’s
marketing of high-fructose corn syrup as “corn
sugar”
• Competing petition to FDA for approval to
substitute “corn sugar” for “high-fructose corn
syrup”

14. Labeling of Sushi-Grade Tuna
• CO gas used to treat tuna to retain
initial red color when freezing for
transport and storage
• “Filtered natural wood smoke”
label
• Allegation that synthetic CO used
to treat but product labeled
“filtered wood smoke”
• Not likely to mislead customers –
no damages

15. Neutrogena, Coppertone and Sunscreen
• Challenge over Neutrogena
Ultimate Sport® ad comparing to
Coppertone Sport with phrase
“Best average UVA/UVB
protection vs. leading sports lines”
and a chart
• Head-to-head comparative ad
without testing actual products
• “28% chemical propellant”
statement
• Not likely to mislead customers –

16. Greenwashing
• False claims about environmental benefits of
products
• Windex® – Greenlist® trademark
• Tide®, Ajax®, other household cleaners –
dangerous chemicals
• Civic Hybrid – gas mileage/consider fuel-efficient

17. Assessing IP Risk in Ads
• Conduct training sessions with key
sales and marketing personnel
• Audit advertising review procedures
• Monitor competitors’ claims and
evaluate possible vulnerabilities