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WARNER-LAMBERT CHARGES PERRIGO WITH COOL MINT LISTERINE INFRINGEMENT

Executive Summary

WARNER-LAMBERT CHARGES PERRIGO WITH COOL MINT LISTERINE INFRINGEMENT of trade dress in a complaint filed Sept. 4 in Dallas federal court. The complaint asserts that private labeler Perrigo's Equate Blue Mint Antiseptic Mouth Rinse "uses a trade dress that closely imitates and copies the inherently distinctive trade dress of Warner-Lambert's Cool Mint Listerine Antiseptic." According to the complaint, the Perrigo mouth rinse product, like Cool Mint Listerine, is packaged in clear, plastic barbell- shaped teal blue 32 oz. bottles. The Equate front label states; "Compare to Cool Mint Listerine." Warner-Lambert claims that "Perrigo's use of the term 'Equate' in combination with 'Compare to Cool Mint Listerine' improperly connotes that Equate is equivalent to Cool Mint Listerine Antiseptic in terms of efficacy, taste and quality." The Listerine manufacturer alleges that Perrigo's use of the trade dress and the label statement "constitutes false advertising, and misrepresents the nature, characteristics and qualities of defendant's mouth rinse." The complaint notes that the Equate product is available only in Wal-Mart stores and alleges that a "substantial quantity" of the Perrigo product has been sold in the court's judicial district. Cool Mint Listerine, launched in May, posted sales of $36 mil. through July. Warner-Lambert said it has spent over $22 mil. in advertising and promotions for the product introduction and plans to spend an additional $23 mil. by the end of 1992. Warner-Lambert is requesting that Perrigo be enjoined from manufacturing and selling the product or any trade dress that copies Cool Mint Listerine and from making "false and/or misleading" representations regarding the Equate mouth rinse. The company also is asking that Perrigo be required to give all products, packaging and promotional materials to Warner-Lambert for destruction and pay over to Warner-Lambert all profits from the product's sale, in addition to damages and attorneys' fees. Perrigo said Sept. 10 that, "like other companies in the store brand industry, it has from time to time had disputes with national brand name companies regarding allegedly similar sizes, shapes, colors, labelings or packagings of its products," and that these disputes "are not material to the company's business." Perrigo settled a suit by another oral health care product manufacturer, Pfizer Oral Research Labs, in November 1991. That suit claimed that Perrigo infringed the trade dress of Pfizer's Plax oral rinse. Under the out-of-court settlement, Perrigo said it would "take action to assure that its oral rinses do not copy the shape of the Plax bottle, its label or its formula."
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