Antitrust Law Daily Wrap Up, ADVERTISING—SDNY: Pet Care Firm Barred from Falsely Advertising Flea and Tick Products, (May 29, 2013)

By William Zale, J.D.

Sergeant’s Pet Care Products has been preliminarily enjoined from making advertising claims that its flea and tick products prevent ticks from coming into contact with the pet, in a false advertising suit brought by Bayer Healthcare in the federal district court in New York City (Bayer Healthcare LLC v. Sergeant’s Pet Care Products, Inc., May 28, 2013, Rakoff, J.).

The court ordered Sergeant’s, “on pain of contempt,” to recall from all channels of distribution by no later than May 29, 2013, its “dog in the bubble” advertisement for Sentry Fiproguard. The advertisement depicted a dog treated with Fiproguard sitting calmly in a bubble as fleas and ticks crash futilely into the bubble, while a dog without a bubble is furiously scratching.

In a complaint filed April 15, 2013 (Document 1; Document 1-1; Document 1-2), Bayer alleged that Sergeant’s engaged in false advertising under the Lanham Act, unfair competition under New York common law, and deceptive acts and practices under New York General Business Law §§349-350 by launching a national advertising campaign that deceives consumers and retailers into believing that Sergeant’s products offer superior flea and tick protection compared to competing products, including those of Bayer.

The case is No. 13 Civ. 2501 (JSR).

Attorneys: David H. Bernstein (Debevoise & Plimpton LLP) for Bayer Healthcare LLC. Paul Wendell Garrity (Sheppard, Mullin, Richter & Hampton, LLP) for Sergeant’s Pet Care Products, Inc.

Companies: Bayer Healthcare LLC; Sergeant’s Pet Care Products, Inc.

Cases: Advertising StateUnfairTradePractices NewYorkNews