Tuesday, October 27, 2009

Atomizer claim falls apart: failure to meet burden dooms trade dress, false advertising claim

Sharn, Inc. v. Wolfe Tory Medical, Inc., 2009 WL 3416503 (M.D. Fla.)

Wolfe Tory moved to preliminarily enjoin Sharn from using an allegedly confusingly similar trade dress in medical devices that deliver medicine to the throat and nose (mucosal atomization devices). Sharn used to be a Wolfe Tory distributor, but began to market its own mucosal atomization devices after that arrangement ended. The parties’ devices share many similar features, including a white nasal cone on the nasal device. The court found, however, that Wolfe Tory hadn’t met its burden of showing nonfunctionality; though it identified numerous other designs, it didn’t show that those designs offered the same combination of features, cost and quality it touted as its own.

Likewise, Wolfe Tory failed to meet its burden on its false advertising claims. Wolfe Tory alleged that Sharn’s ads that its devices atomize were false and misleading because at least some of Sharn’s devices don’t atomize. In March 2009, Sharn discovered that a small number of its mucosal atomization devices were defective; it recalled them and replaced them, fully advising the FDA. The court was unpersuaded that this amounted to false advertising: some of Sharn’s devices were defective, and Sharn remedied the defect. A party isn’t liable for false advertising just because some of the products were defective and were recalled. (Why not? Maybe there’s a materiality issue, if the numbers were small enough, but false advertising is generally strict liability.) Anyway, Wolfe Tory couldn’t show irreparable injury; this wasn’t a case of comparative advertising where harm could be presumed, and Wolfe Tory didn’t carry its burden to show irreparable harm in other ways.

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