Sannes, of the United States District Court for the Northern District of New York, sitting by designation. Plaintiff alleged, and the district court agreed, that packaging and advertising messages used by Defendant were false because they implied 1 The Honorable Brenda K. The medical profession traditionally measures the advancement of a pregnancy not from the date of ovulation or fertilization, but rather from the date of last menstrual period, which generally occurs approximately two weeks prior to ovulation. The false advertising at issue involves the “Weeks Estimator” feature of Defendant’s product, which informs the user the number of the weeks elapsed since ovulation.
§ 1125(a), and issued a permanent injunction prohibiting Defendant from using certain advertising and packaging and requiring it to issue corrective notices and advertising. _ Before: LEVAL and WESLEY, Circuit Judges, and SANNES, District Judge.1 Defendant, a marketer of over-the-counter, home pregnancy tests, appeals from the judgment of the United States District Court for the Southern District of New York (Nathan, J.), which, following a bench trial, found Defendant liable for false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. SPD SWISS PRECISION DIAGNOSTICS, GMBH, Defendant-Appellant. 15-2411 _ CHURCH & DWIGHT CO., INC., Plaintiff-Appellee, v. Accordingly, the court affirmed the judgment.ġ5-2411-cv Church & Dwight Co., Inc. 301 et seq., claim there is no error in the district court's finding of falsity in defendant's Launch Package and advertising messages associated with it by reason of their unambiguous implication that defendant’s product measures weeks-pregnant in a manner that is consistent with the measurement used by doctors agreed with the district court's finding, based on survey evidence, that the message communicated by the Revised Package was impliedly false there was no error in the district court’s findings that the falsity was material and injurious to plaintiff and the court did not abuse its discretion in issuing the injunction. The court agreed with the district court that plaintiff's Lanham Act claim is not precluded by the Food, Drug, and Cosmetic Act, 21 U.S.C. The district court found in favor of plaintiff and imposed an injunction on defendant.
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Plaintiff, a leading competing marketer of over-the-counter pregnancy test kits, claimed that, in informing the user as to how long her pregnancy had been in effect, defendant’s product communicated the false impression that it uses the same metric and gives the same number of weeks of pregnancy as a medical professional would do. Defendant, a marketer of over-the-counter pregnancy test kits, was found liable for false advertising in violation of section 43(a) of the Lanham Act, 15 U.S.C.
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