So, the battle royale over sunscreen ad claims is dying out. Judge Robinson clearly implied, in her order yesterday, that this one is all but over — after three seasons of suntanning have come and gone (J&J won Round One in 2009; Schering-Plough came out on top in Round 1.5 here):
. . . .On balance, the court finds that plaintiff’s proposed injunctive relief is not warranted. Plaintiff has not articulated any particular injuries as a result of defendant’s false advertisements, let alone irreparable injury. Even were the court to assume a generalized injury to plaintiff’s goodwill during the period of literal falsity, plaintiff adduces only conclusory allegations that money damages are incalculable and, therefore, inadequate to compensate any injuries it may have. Plaintiff 11as not attempted to quantify its loss. Defendant has iterated a strong interest in allowing it full enjoyment of its helioplex® mark under the trademark laws (to the extent permissible by law). While the public interest favors enjoining literally false advertising, the public is not currently being deceived. There is no indication that defendant continues to use the print ad or that 100+ Product (manufactured between April and August 2009) falsely bearing the “helioplex®” mark remain for sale, and the 1 00+ Product now contains DEHN. . . .
IT IS FURTHER ORDERED that, on or before Friday, June 17, 2011, the parties may submit letters to the court8articulating whether any additional issues need be resolved prior to the termination of this litigation. . . .
/s/ Judge Sue L. Robinson
June 8, 2011
So, this one will likely end with a whimper — not a bang.