Monday, November 16, 2015

Manufacturer not liable for distributor's false ads

GOJO Industries, Inc. v. Innovative Biodefense, Inc., 2015 WL 7019836, No. 15 Civ. 2946 (S.D.N.Y. Nov. 12, 2015)
Defendant IBD moved for a preliminary injunction against GOJO and nonparty distributors of GOJO products barring them from making representations that GOJO products are FDA approved and from using government agency logos in an online video. The court denied the motion.
GOJO sued IBD for falsely advertising that its Zylast hand sanitizing products were “FDA approved” and for deceptively using the FDA logo in ads, as well as for making false claims about GOJO’s Purell hand sanitizing products. The parties stipulated to an order preliminarily enjoining IBD and its authorized agent from representing that Zylast products were FDA approved and from using the FDA logo in advertisements.  IBD then sought a preliminary injunction against similar “FDA approved” representations in the sale of GOJO products and use of CDC, World Health Organization, and Health Canada logos in an educational handwashing video on the Purell website.  IBD’s evidence about “FDA approved” was from websites belonging to nonparty distributors and a nonparty independent sales rep.  A March 2014 email chain between GOJO’s National Account Director and an independent distributor in which the GOJO employee provided instructions on the correct names for GOJO products and also provided current product images.
GOJO argued that the nonparty distributors were not GOJO’s agents or under GOJO’s control and that it had removed the logos from the educational video on the Purell website. “In order for a nonparty to be bound, that entity must either aid and abet the defendant or be legally identified with it.” IBD didn’t introduce evidence of an agency relationship with any of the distributors. Providing basic information about product names and images wasn’t enough.

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