PHARMACIA CORPORATION V GLAXOSMITHKLINE (Name) (Date) (Institution)

Lanham act violation exists in two ways. One is where a statement is false. Two, is that the statement is true and ambiguous, but can mislead consumers. In the second case the plaintiff has to show substantial evidence that the statement indeed has misled a large proportion of consumers, in order to warrant consideration. The assessment by court of Pharmacia claims that GSKCH violated Lanham act is the first step.

The first claim is that “revised tough decision” advertisement violates the Lanham act by giving a false claim over Nicorette.In scrutinizing whether the advertisement is false, the court has first to consider the unambiguous claims by the advertisement. It also has to consider also whether it is false. A deceptive message can be expressed or portrayed in the contest that the consumers understand, in a way, in which it was intended to suit its purpose. In this view, it is only logical to view that only an unambiguous can be false. If a statement is ambiguous then it is open to many interpretations and thus cannot be used as a false gauge. (Horvath, Villafranco and Calkins, 2009)

With reference to the labels Nicorette gum can be used any moment, day or night. Pharmacia asserts that the “Revised Tough Decision” is false. Pharmacia asserts that, while the ad informs viewers that the label states that Nicorette can be used anytime. The label itself places some limitations on the use of Nicorette, for instance, consumers advised not to use it while eating or drinking, or even not to chew one piece after the other and also not to take more than 24 pieces a day. (Halbert and Ingulli, 1990)

The court has to determine the unambiguous claim of the statement and whether that statement is false. An unambiguous claim can be expressed directly by the advertisement. If the statement does not make an unambiguous claim then we cannot say, Lanham act has been violated for this claim; it is possible that there were several interpretations. One is that the label allows consumers to use Nicorette in case they are unable to use Nicotrol, and another would still purport that the label, allows consumers to use it anytime even when having a meal. The court asserts that it cannot stop the “Revised Tough Decision” on grounds that Nicorette gum being used any time is not a false statement under Lanham act. As a result, the court could not stop GSKCH from airing the advertisement. (Scaturro, 2000)

Pharmacia also claims that the “Revised Smart Choice” by GSKCH violates Lanham act. Pharmacia asserts that the commercial claims to be better, that is Nicoderm is a better patch in helping smokers to quit smoking than other patches such as Nicotrol.For Pharmacia to obtain a preliminary injunction, it had to prove two things first. One is that the advertisement had misled a substantially large number of consumers and lastly that this was false.

The case of proving beyond reasonable doubts could only be possible through consumer surveys that the court could rely on. For instance the DuPont survey which was later dismissed by the court on grounds that it was not independent hence biased.

Pharmacia also points that the ad “Revised Smart Choice” violates the Lanham act by portraying that more doctors prefer Nicoderm to Nicotrol.Nicoderm is seen to offer choices as it can be used either for 16 hours or 24 hours compared to its rival Nicotrol.It is this choice that makes it preferable to doctors. However, when the court conducted investigations to see whether this is true it was false. Meaning the unambiguous statement was false. Having no other option a preliminary injunction for Pharmacia is inevitable, and GSKCH stopped airing the advertisement. (Halbert and ingulli, 1990)

Public interest is the most important when it comes to matters of commercial. Pharmacia shows a strong position in that GSKCH violated Lanham act by false advertisement. The court also views this as a violation and grants injunction since this is very crucial when it comes to OTC drugs. However, there is a counsel that declines this injunction, in the view of public interest in a free market. In the view of public interest in a free market, the public has to be considered. The court is however cautious of those manufacturers who would want to curb activities of others in a competitive market, by granting them a preliminary injunction. However, since false advertisement is a grave mistake, the “Revised Smart Choice” stopped from being aired. (Halbert and Ingulli, 1990)
In conclusion, Pharmacia has proved beyond reasonable doubt that all the four requirements necessary for a preliminary relief were satisfied. “Revised Smart Choice” doctors’ preference to the patch that gives a choice is false. On the other hand, GSKCH has not shown that Pharmacia comes to court with unclean hands with respect to this claim. Accordingly, the court will grant Pharmacia’s motion stopping GSKCH from airing commercial, as it is faulty.
However, Pharmacia has not succeeded in the other two claims of “Revised Tough Decision” therefore; the court will not grant Pharmacia’s motion for injunction, to the extent asserted in these two cases.

References
Epstein, M., & Epstein, M. (2006). Epstein on intellectual property (1st ed.). New York, NY: Aspen Publishers.
Halbert, T., & Ingulli, E. (1990). Law and ethics in the business environment (1st ed.). St. Paul, MN: West Pub. Co.
Horvath, A., Villafranco, J., & Calkins, S. (2009). Consumer protection law developments (1st ed.). Chicago, IL: ABA Section of Antitrust Law.
Scaturro, F. (2000). The Supreme Court's retreat from Reconstruction (1st ed.). Westport, Conn.: Greenwood Press.