On Jan. 19, 2010, Weight Watchers International Inc. of New York sued its rival, Jenny Craig, Inc., in the U.S. District Court for the Southern District of New York. The suit alleged that the latter’s ads were misleading and deceptive, claiming they reference a comparison study carried out by Jenny Craig between the two companies’ competing products–Weight Watchers’ current weight-loss program and Jenny Craig’s pre-packaged meals system. Apparently, no such study was ever conducted. Weight Watchers’ suit asked for injunctive relief and damages. The next day, Jan. 20, 2010, Weight Watchers announced that the court had issued a Temporary Restraining Order (TRO) against Jenny Craig. TROs are generally issued when the court believes the plaintiff’s claims would likely succeed on their merits in a preliminary injunction proceeding, and that to do nothing in the interim would unfairly prejudice the plaintiff. The TRO forbids Jenny Craig from broadcasting, publishing or disseminating claims of superiority over the Weight Watchers program. In other words, they cannot use the ads at issue or any other ads containing these claims.
The comparative advertising doctrine allows one party to use the trademarks of another without permission if truthful and verifiable facts presented provide a valid factual comparison that helps consumers decide which product is better. On the other hand, a comparative advertisement that falls short of substantiation and validation, as in the foregoing case, could very well give the harmed party a claim of trademark tarnishment, in addition to deceptive advertising.
One e-columnist claims the lawsuit was and is a waste of time. We wonder, if it were that columnist’s trademarks or those of his e-journal that were being exploited by a competitor, would he be so philosophical.