When companies have invested innumerable hours and millions or billions in capital in product development and promotion, they need to safeguard the reputation of those products. At the same time, organizations must be free to use the powers of words, imagery, and marketing to promote the value of their products if we are to have the robust and competitive marketplace we need to fuel our national economy. Whether it is protecting value or assuring the right of fair dealing, Ballard Spahr’s lawyers are uniquely positioned to serve as skilled advisers and advocates on false advertising litigation issues.
Our competition and intellectual property lawyers have significant experience prosecuting and defending false advertising claims under the Lanham Act and related intellectual property and competition claims under other federal and state law. We have successfully prosecuted and defended cases involving billions of dollars in sales at issue. We also regularly assist clients in evaluating potential claims and in engaging competitors or regulators in correspondence with the aim, often successful, of curbing the conduct without resort to litigation.
Experience
- We represented GlaxoSmithKline (GSK) in a 2020 Lanham Act action that it brought against a multinational pharmaceutical competitor in the market for medications used to treat Chronic Obstructive Pulmonary Disease (COPD), an $18 billion market for drugs. GSK, the market leader in this therapeutic area, contended that the competitor engaged in a multifaceted promotional campaign that conveyed scientifically unsupported, and therefore, false and misleading claims in an attempt to change the way in which healthcare providers select inhalers for COPD patients. The suit sought both preliminary and injunctive relief, as well as monetary damages and disgorgement of profits. After expedited discovery and a hearing, the court granted GSK’s requested preliminary injunction in large part. The parties continued to litigate issues of damages until negotiating a confidential settlement.
- We represented CSL Behring in a dispute with Bayer Healthcare over the supply and promotion of the recombinant Factor A hemophilia treatment known as Helixate. CSL filed suit against Bayer for, inter alia, false advertising under the Lanham Act, alleging that Bayer made misleading statements to doctors and insurers about the availability of Helixate, in order to get doctors and patients to switch to Bayer’s own hemophilia A therapies. The case settled before trial.
- We represented GlaxoSmithKline (GSK) in bringing suit against a generic drug maker on claims that it falsely advertised an antidepressant. GSK accused the generic manufacturer of causing hundreds of millions of dollars in lost profits, damaging its reputation and endangering consumer health by promoting a generic drug as being as safe and effective and bioequivalent to GSK’s drug when, in reality, the generic product was much less effective and posed safety issues. After defeating a motion to dismiss and extensive discovery, the case resolved with a confidential settlement.
