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MAYBELLINE CO. v. NOXELL CORP.

August 25, 1986

MAYBELLINE CO., PLAINTIFF,
v.
NOXELL CORPORATION, SSC&B: LINTAS WORLDWIDE, DEFENDANTS



The opinion of the court was delivered by: ROY

ROY, U.S.D.J.

 DECISION ON MOTION FOR PRELIMINARY INJUNCTION

 Plaintiff has filed a complaint and motion for preliminary injunction alleging violations by the defendants under the provisions of the Lanham Act and unfair competition under common law. A hearing on the motion for preliminary injunction was held on August 20 and 21, after sufficient notice was given to all parties involved.

 According to the allegations of the complaint, plaintiff, Maybelline Co., is a Delaware corporation whose principal place of business and only factory in the United States is located in North Little Rock, Arkansas.

 Defendants, Noxell and SSC&B: Lintas Worldwide (SSC&B), are non-resident corporations doing business in Arkansas. Defendant Noxell manufactures Clean Lash mascara and defendant SSC&B is responsible for the advertising and promotion of Clean Lash mascara.

 In seeking a preliminary injunction, the plaintiff requests the Court to restrain the defendants from continued advertisement of "Clean Lash" mascara as being waterproof; further shipment of packages of "Clean Lash" containing such misrepresentations; and the recall of such products now on display.

 Section 43(a) of the Lanham Act provides, in pertinent part, that:

 
Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, . . . any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, . . . shall be liable to a civil action . . . by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

 15 U.S.C. § 1125(a).

 To prevail on its claim under Section 43(a), Maybelline must establish, inter alia, that the claims it challenges are false or deceptive. Toro Co. v. Textron, Inc., 499 F. Supp. 241, 251 (D.Del. 1980). The Court finds after hearing the testimony and reviewing the exhibits that plaintiff has met its heavy burden of proof.

 Defendants are engaged in a national television and printed media advertising campaign to promote Noxell's new line of mascara -- Cover Girl Clean Lash. As part of this advertising campaign, defendants have aired numerous commercials on Arkansas television networks, caused full-page advertisements to be run in People and other national magazines. An exhibit received showed the advertisement in People magazine; and one of the witnesses testified an identical full-page advertisement also appeared on the back of the September issue of Glamour magazine. He stated that he had seen the ad in four or five other magazines, which had been distributed in Arkansas, as well as nationally. Sherry Colonel, advertising executive for SSC&B, testified that her company handled all the advertising for Clean Lash mascara.

 In observing Plaintiff's Exhibit No. 4, a videotape of the Clean Lash commercial, it is noted that the voice-over claims that "water won't budge" Clean Lash and that it "laughs at tears." This appears to refer to product qualities -- lack of flaking and no running/smearing/smudging. In addition, the Clean Lash advertisement depicts a woman putting on a dress over her head, implying that the mascara would not transfer to her dress or to her face, and dabbing around her eyes with a tissue, implying that tears would not cause the mascara to transfer to her face. However, independent laboratory tests indicated that all these things did occur to a number of subjects using Clean Lash mascara.

 A similar commercial involving another waterproof mascara by Noxell (Marathon mascara) claims that Marathon is a "waterproof" mascara that will not smudge, smear or flake; it also shows a woman blotting her face with a towel after a swim, implying that the mascara will not transfer to her face or her towel after she blots it. The independent tests confirmed that Marathon was waterproof.

 Webster's Dictionary defines "waterproof" as "impervious to water". From a common sense or consumer point of view, the promise of "waterproof" may be reasonably assumed to convey that the mascara will not run, smudge, smear or flake while it is being worn during water activities. It is also reasonable to assume that it will not ...


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