Kramer Levin Scores Another Victory for Procter & Gamble in Tampon Advertising Saga

On July 14, 2009, United States District Judge William H. Pauley III denied Playtex’s motion to preliminarily enjoin our client, Procter & Gamble, from advertising certain claims concerning its Tampax Pearl tampon product. Playtex and P&G have been locked in tampon advertising litigation since 2002. After a jury verdict in Playtex’s favor in 2003, the Court issued a permanent injunction enjoining P&G from claiming that Tampax Pearl provided superior leakage protection compared to Playtex’s Gentle Glide product. In February 2008, the Court granted the unusual remedy of modifying the injunction, holding that P&G’s product had sufficiently changed from the version P&G marketed in 2003 that was the subject of the injunction, and that P&G’s tests proved that its product was now superior to Playtex’s with respect to leakage protection. The very day the Court issued its opinion, Playtex notified P&G that Playtex also had changed its tampon product and threatened to sue P&G if it claimed superior leakage protection for Tampax Pearl. Within days, P&G preemptively sued Playtex in the Southern District of New York. Playtex counter-claimed for Lanham Act violations and moved to enjoin P&G from claiming that Tampax Pearl tampons provide superior leakage protection compared to Gentle Glide tampons. After an intense two-day hearing during which eight witnesses testified, the Court denied Playtex’s motion, finding that Playtex had not met its burden because its testing did not prove that P&G’s superiority claim is false. 

Litigation partners Harold P. Weinberger and Jonathan M. Wagner, and associates Tobias B. Jacoby and Matthew C. Temkin worked on the matter.