Vidal Sassoon, Inc. v. Bristol-Myers Co.

Vidal Sassoon, Inc. (Sassoon) (plaintiff) sold a shampoo under the name “Sassoon.” In 1980, Bristol-Myers Co. (Bristol) (defendant) began selling a shampoo under the name “Body on Tap” and launched a national television commercial in which the fashion model Cristina Ferrare claimed: “[I]n shampoo tests with over [900] women like me, Body on Tap got higher ratings than Prell for body. Higher than Flex for conditioning. Higher than Sassoon for strong, healthy looking hair.” The 900 women involved did not, however, make product-to-product comparisons between Body on Tap and Sassoon, nor between Body on Tap and any of the other shampoo products mentioned in the commercial. Rather, each women tested one shampoo (and not more) and rated it on a scale that Bristol calculated in such a manner that established Body on Tap as the higher-rated product. Moreover, at least one-third of the women involved were teenagers and not “women like” Cristina Ferrare. Shortly after Bristol launched its commercial, Sassoon brought suit on the ground that Bristol’s commercial violated the prohibition in § 1125(a) of the Lanham Act against false and misleading advertising. Sassoon submitted evidence that Bristol’s commercial created an impression in the minds of the consuming public that the 900 women made product-to-product comparisons among two or more shampoos and that Body on Tap was the superior product. The district court granted a preliminary injunction in favor of Sassoon after concluding that it had demonstrated a possible Lanham Act violation and possible irreparable harm to its reputation if dissemination of the commercial did not cease. Bristol appealed.