Church & Dwight Co. v. The Clorox Company
United States District Court for the Southern District of New York
102 U.S.P.Q.2d (BNA) 1453 (2012)
Church & Dwight Company (C&D) (plaintiff) and The Clorox Company (defendant) manufactured competing cat litters. C&D used baking soda in its cat litter; Clorox used carbon. C&D was the only major litter company that used baking soda. Clorox ran a commercial that showed two laboratory beakers, one labeled carbon, and one labeled baking soda. Green gas was added to the beakers, and the gas evaporated in the carbon beaker but remained unchanged in the baking soda beaker. C&D sued Clorox for false advertising under the Lanham Act and moved for a preliminary injunction. To support its commercial, Clorox conducted a “jar test” in which it placed cat feces and urine in a series of jars, covered the feces and urine with either carbon or baking soda, sealed the jars, and let the jars sit for about 24 hours. Clorox then opened the jars and asked 11 panelists to smell the jars and rate any malodor on a scale of 0 to 15. The experiment was repeated four times. Each of the 11 panelists rated the carbon jars as having a “0” malodor each of the four times. The panelists rated the baking soda jars, on balance, as having a malodor. C&D argued that this result was highly implausible given that humans are “noisy instruments” that frequently do not perceive the same thing in the same way, and frequently report smells that do not actually exist.
Rule of Law
Holding and Reasoning (Rakoff, J.)
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