What public interests are at stake in this case?

A Lanham Act false or misleading statement may be proved in one of two ways. The plaintiff must show that the commercial message or statement is either (1) literally false or (2) literally true or ambiguous, but has the tendency to deceive consumers. [In cases of the second kind, plaintiff must show that a substantial portion of consumers actually understand the ad to be making the misleading claim, by producing] evidence that consumers are actually misled by the defendants statements.

[Discussion of Pharmacias Likelihood of Success in Proving its Lanham Act Claims]

[The court begins by assessing Pharmacias claims that GSKCHs ad violates the Lanham Act. The first is that the Revised Tough Decision ad makes an expressly false claim about Nicorette:]

While the ad tells viewers that the label states Nicorette may be used any time the consumer needs it, Pharmacia argues, the label in actuality places limitations on when Nicorette may be used. Specificallythe label instructs consumers to refrain from chewing Nicorette while eating or drinkingcautions users not to continuously chew one piece after another, and not to use more than 24 pieces per day. Pharmacia asserts that these various restrictions render Revised Tough Decision literally false because there are significant periods of each day during which a user may not chew Nicorette.

[The court must decide whether the claim is literally falsea per se violationor merely ambiguous.]

If the statement in question does not make an unambiguous claim, there is no Lanham Act violation absent a showing of actual consumer deception. The Court must look at the commercial as a whole when making its assessment. (A determination of literal falsity rests on an analysis of the message in context.)

The Court finds that GSKCHs statement makes an ambiguous claim Revised Tough Decision as a whole conveys the message that Nicorette is a more flexible aid to quitting smoking than Nicotrol. Within this context, we further find that the statement According to the labels, Nicorette gum can be used whenever you need it, day or night makes an ambiguous claim. One viewer could understand the commercial to claim that Nicorettes label allows consumers to use Nicorette at times when they would be unable to use Nicotrol. Alternatively, another viewer might conclude that GSKCH is claiming that the label permits users to chew the gum whenever they feel like it, even during a meal. The statement is open to interpretation.

[Without evidence of actual consumer confusion we] will not preliminarily enjoin GSKCH from showing Revised Tough Decision.

Pharmacia also alleges that Revised Smart Choice runs afoul of the Lanham Act because it makes the expressly false claim that doctors prefer NicoDerm [because it] offers the choice of being worn for either 16 or 24 hours.

We findthat GSKCH does not have any evidence to support its claim that doctors prefer NicoDerm over Nicotrol because it offers choice, and therefore that claim is per se false.

[Is Pharmacia Entitled to a Preliminary Injunction?]

[Having decided that Pharmacia has made a strong case that GSKCH violated the Lanham Act, the court must decide how fair it is to award a preliminary injunction.]

Harm to Pharmacia

Pharmacia can establish irreparable harm if it can demonstrate a significant risk that [it] will experience harm that cannot adequately be compensated after the fact by monetary damages. We find that GSKCHs own research demonstrates that a commercial nearly identical to Revised Smart Choice was effective at eroding Nicotrols position in the market in 1996, and that this format was revived because GSKCH believed it would work just as well again. These findings establish a significant risk of harm to Pharmacia, because Pharmacia will likely lose market share if GSKCH is free to air Revised Smart Choice.

Harm to GSKCH

Pharmacia must also demonstrate that the potential harm it faces without injunctive relief outweighs the harm [GSKCH] will suffer should an injunction issue. To the extent GSKCH is injured by an injunctionthat injury was caused by GSKCHs own misconduct in making a false claim. The Court therefore discounts any such harm. The likely loss of market share Pharmacia faces without injunctive relief outweighs any harm to GSKCH caused by granting preliminary relief.

Public Interest

The final factor in the preliminary injunction inquiry is whether the public interest favors issuing the injunction. Pharmacia urges that there is a strong public policy against the dissemination of false and misleading advertising. The Court finds that the case law in the Third Circuit supports this contention, especially in the context of OTC drug advertising.

There is a public consideration that counsels against granting an injunction, however. The public has a strong interest in free competition. The injunctive power of the courts should not be misused by manufacturers attempting to stifle the free market that is the cornerstone of our economy. Courts should therefore be wary of producers pleas for injunctive relief against the advertisements of their close competitors.

We nevertheless find that [t]he public interest in truthful advertising is obviously served by a courts prohibition of advertising that is plainly false.

Equitable Considerations

GSKCH asserts that Pharmacia has itself engaged in false advertising, and thus Pharmacias motion should be denied under the doctrine of unclean hands.

GSKCH argues that Pharmacia comes before the Court with unclean hands because in an October 2002 press release Pharmacia stated that Nicotrol was the only 16-hour patch in the NRT market. GSKCH contends that this statement (which, the Court finds, is false because NicoDerm is also approved for 16-hour use) should preclude Pharmacia from enjoining Revised Smart Choice.

The Court disagrees. First, GSKCH has not alleged that Pharmacias statement caused it injury, which is a predicate to application of the unclean hands doctrine. Secondthe nexus between Pharmacias statement and GSKCHs claim in Revised Smart Choice is too remote. Pharmacias claim that Nicotrol is the only 16-hour patch was made in a mere press release. The claim did not disparage NicoDerm. In contrast, [the false claim in] Revised Smart Choice directly attacks Nicotrol. Further, GSKCHs false statement was made in a recurring television commercial aimed at influencing millions of consumers. This is a far cry from a single press release. Pharmacias one false statement does not excuse current deceptive and misleading advertisements to the public.