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False Advertising: False or Misleading Statements of Fact 233
discover the soothing benefits of America’s number one selling bath oil.
Try it now and see for yourself what millions already know. Avon.”
In 1988, the “Secret” ad was published in USA Today. In 1989, Avon advertised
Skin-So-Soft bath oil as the “EIGHTH WONDER OF THE WORLD” in a print ad.
Avon [later] obtained a sublicense to sell an E.P.A. registered insect repellent
product developed by another company, Primavera Laboratories, Inc. and in May 1994,
Avon began to market that product under the name “Skin-So-Soft Moisturizing Suncare
Plus Mosquito, Flea & Deertick Repellent SPF 15 PABA-Free Sunscreen Lotion”
(“Skin-So-Soft Three-In-One Product”).
In May 1994, Avon promoted the Skin-So-Soft Three-In-One Product with a
national television campaign entitled “Let Kids Be Kids.”
XXIV. ADVERTISING AND PROMOTION UNDER THE LANHAM ACT
Section 43(a)(1)(B) of the Lanham Act provides in relevant part:
Any person who, on or in connection with any goods or services, . . .
uses in commerce any word, term, name, symbol, or device, or any
combination thereof, or any . . . false or misleading description of fact,
or false or misleading representation of fact, which . . . in commercial
advertising or promotion, misrepresents the nature, characteristics,
qualities or geographic origin of . . . another person’s goods, services or
commercial activities, shall be liable in a civil action by any person who
believes that he or she is likely to be damaged by such act. 15 U.S.C.
§ 1125(a)(1)(B).
The first requirement of a Lanham Act violation is “commercial advertising or
promotion” by a defendant. As one court has stated, “[t]he words ‘advertising’ and
‘promotion,’ connote reaching out to consumers. In modern jargon, these words connote
proactive, not merely reactive, communication. Lanham Act ‘advertising or promotion’
usually involves initiating notice to consumers. . . .” Fashion Boutique of Short Hills,
Inc. v. Fendi USA, Inc., 942 F.Supp. 209, 215 (S.D.N.Y. 1996).
In order for representations to constitute “commercial advertising or promotion”
under Section 43(a)(1)(B), the representations must be disseminated sufficiently to the
relevant purchasing public to constitute “advertising” or “promotion” within that
industry. The level of dissemination required to constitute advertising and promotion will
vary from industry to industry and case to case.
Dissemination to a single customer is generally not sufficient. Id. However, where
the relevant purchasing public is very small, misrepresentations, though few in number,
which reach a significant portion of the purchasing public are actionable. See Seven-Up
Co. v. Coca-Cola Co., 86 F.3d 1379, 1386 (5th Cir. 1996) (allegedly false representations
made to eleven of seventy-four members of relevant purchasing public constitutes
“advertising or promotion” under the Lanham Act); National Artists Management Co. v.
Weaving, 769 F.Supp. 1224, 1235–36 (S.D.N.Y. 1991) (defendant’s conversations with ten
of plaintiff’s thirty clients constituted advertising or promotion under the Lanham Act
where industry was “indisputably small and closely interconnected”).
In this case, I conclude that Avon has engaged in advertising and promotion under
the Lanham Act. I find this despite the fact that the members of the relevant purchasing
public indisputably number in the millions, and S.C. Johnson has only presented
approximately 100 lists identifying SSS as an insect repellent from Avon’s files.
My conclusion that Avon has advertised and promoted SSS bath oil as an insect
repellent is based on the factual findings described above and summarized as follows: