Gillette Co. v. Norelco Consumer Products Co., CIV. A. 96-12034-RCL.

• Decision Date: 06 October 1999
• Docket Number: No. CIV. A. 96-12034-RCL.,CIV. A. 96-12034-RCL.
• Citation: 69 F.Supp.2d 246
• Parties: THE GILLETTE COMPANY, Plaintiff v. NORELCO CONSUMER PRODUCTS COMPANY, a Division of Philips Electronics North America Corporation, Defendant.
• Court: U.S. District Court — District of Massachusetts

69 F.Supp.2d 246

THE GILLETTE COMPANY, Plaintiff v. NORELCO CONSUMER PRODUCTS COMPANY, a Division of Philips Electronics North America Corporation, Defendant.

No. CIV. A. 96-12034-RCL.

United States District Court, D. Massachusetts.

October 6, 1999.

George J. Skelly, Skadden, Arps, Slate, Meagher & Flom, Boston, MA, Kenneth A. Plevan, Bruce J. Goldner, Stephanie J. Kamerow, Skadden, Arps, Slate, Meagher & Flom, Esther S. Trakinski, Skadden, Arps, Slate, Meagher & Flom, New York, NY, for Gillette Company, Plaintiffs.

Robert S. Frank, Jr., Choate, Hall & Stewart, Boston, MA, Robert J. Giuffra, Jr., John C. Stellabotte, Alan S. Rabinowitz, Sullivan & Cromwell, New York, NY, Raymond A O'Brien, Choate, Hall & Stewart, Boston, MA, Michael H. Steinberg, Sullivan & Cromwell, Los Angeles, CA, for Norelco Consumer Products Company, A Division of Philips Electronics North America Corporation, Defendants.

MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW

LINDSAY, District Judge.

I. Introduction

This case raises the question of whether one of two competitors in the shaving products industry has falsely or misleadingly touted its own product to the disadvantage of the products of the other competitor. Thus does the plaintiff, The Gillette Company ("Gillette"), allege that certain television commercials of the defendant, Norelco Consumer Products Company ("Norelco"), violate section 43(a) of the Lanham Act ("Section 43(a)"). The commercials in question feature a wet razor (i.e., a manual razor that includes blades) depicted in animated form and state that Norelco's Reflex Action razor ("Reflex Action"), an electric razor, produces "less irritation than blades." Gillette asserts that the claim in the commercials that the Reflex Action produces "less irritation" is false or misleading.

Gillette has requested that the court enter an order permanently enjoining Norelco from (1) airing the commercials at issue; (2) publishing any advertising that claims that the Reflex Action shaves with less irritation than (a) Gillette's Sensor and SensorExcel (two Gillette wet razors), (b) any so-called "systems razor" (i.e., razors with disposable blades, but reusable handles), or (c) any blade razor; (3) publishing any advertising that claims that electric razors shave with less irritation than blades based on a definition of "irritation" that includes "nicks and cuts" as an attribute of irritation; and (4) using the so-called PACE Study (addressing the efficacy of the Reflex Action compared to wet razors) for any advertising or promotional purpose. Gillette has not sought damages. Both Gillette and Norelco, however, have requested attorneys' fees.

II. Procedural Background

Gillette filed this action in October 1996 and shortly thereafter requested a preliminary injunction prohibiting Norelco from continuing to use certain advertisements for the Reflex Action during the pendency of this litigation. In November 1996, the court entered a preliminary injunction enjoining Norelco "from making any statement or claim, in any advertisement or promotion, to the effect that the Reflex Action shaver ... shaves with less irritation than wet shavers, without also including a ... statement to the effect that a user of the Reflex Action" must use the razor for a twenty-one day acclimation period before he will experience decreased irritation. Gillette Co. v. Norelco Consumer Prods. Co., 946 F.Supp. 115, 140 (D.Mass.1996) ("Gillette I"). The court further enjoined Norelco from making any claims based on a limited consumer reaction survey known as the Celebrity Study. See id. at 141. That Study and the advertisements based on it were not issues in the trial of this case.

During the period between the granting of preliminary relief and the commencement of trial the court has ruled on various motions, thereby narrowing the issues for trial. The most important of these rulings are briefly recounted here. On August 11, 1997, the court, in a ruling from the bench, granted Norelco's motion for summary judgment as to Gillette's Lanham Act claims based on the product inserts Norelco includes with the packages that contain the Reflex Action sold at retail. The court, however, denied the motion to the extent that it asserted that Norelco was entitled to summary judgment as to Gillette's claim that Norelco's commercials were misleading based on their use of certain images and on the so-called tag line, "Anything Closer Could Be Too Close For Comfort." See Gillette Co. v. Norelco Consumer Prods. Corp., No. 96-12034 (D.Mass. Aug. 11, 1997) (Docket No. 98). In September 1998, the court, in a ruling from the bench, granted Norelco's motion for summary judgment based on the mootness of Gillette's claims arising from Norelco's "clinically proven" advertisements. In that ruling the court also granted summary judgment as to Gillette's sole claim under Massachusetts law. See Gillette Co. v. Norelco Consumer Prods. Corp., No. 96-12034 (D.Mass. Sept. 8, 1998) (Docket No. 228). In October 1998, the court denied Norelco's motion for summary judgment, made on the ground that Gillette had suffered no injury. See Gillette Co. v. Norelco Consumer Prods. Corp., No. 96-12034 (D.Mass. Oct. 9, 1998) (Docket No. 240). On the same day, the court granted Norelco's motion for summary judgment with respect to Gillette's claim that Norelco's print advertisements and its so-called "Razor Bites" television commercial violated the Lanham Act. See Gillette Co. v. Norelco Consumer Prods. Corp., No. 96-12034, slip. op. at 5 (D.Mass. Oct. 9, 1998) ("Gillette II"). The court further granted Norelco's motion for summary judgment as to all of the commercials to the extent that Gillette claimed that the commercials were literally false. See id. at 6. Thus, at the time this action went to trial, Gillette's claim for injunctive relief was based solely on four television commercials denominated as follows: "Fire Breathing Razor," "Twin Blade Serpent," "Possessed Razor," and "Razor Smiles and Frowns." Gillette's claims as to these four commercials were limited by the court's ruling of October 9, 1998 that the commercials were not literally false; accordingly, the burden on Gillette at trial was to prove the implied falsity of the four commercials. See id.

As to these four commercials, a non-jury trial took place over twenty-one days. The court now makes the following findings of fact and states the following conclusions of law.

III. Findings of Background Facts

A. The Parties, the Products, and the Commercials

Gillette, a Delaware corporation with its principal executive offices in Boston, Massachusetts, manufactures and markets wet-shaving products. Norelco, a division of Philips Electronics North America Corporation, has its principal executive offices in Stamford, Connecticut and sells a line of electric razors under the brand name "Norelco."

Generally, the world of male shaving products is divided into wet and dry (electric) shaving. In the United States, approximately seventy percent of male shavers use wet or blade razors, and approximately thirty percent use electric razors. Wet-shaving products are of two basic kinds: disposable razors and systems or refillable razors. Disposable razors are plastic razors that are disposed of in their entirety after use. Systems or refillable razors are more permanent because only the used blades, as opposed to the entire razor, are discarded. Gillette is the leading manufacturer and marketer of wet-shaving shaving products in the United States: its share of the wet-razor market is approximately fifty percent on a unit basis.

In 1996, when the commercials at issue in this case were first aired, Gillette's premier wet-shaving razor products were its Sensor and SensorExcel razors. Both are systems razors. Together they accounted for about fifteen percent of the wet-razor market on a unit basis. After the Norelco Reflex Action advertising campaign had ended, these razors accounted for about twenty percent of the wet-razor market.

In 1996, Norelco began marketing the Reflex Action in the United States. The four commercials at issue in this case were part of Norelco's marketing strategy for the Reflex Action and were aired on national television.

The commercial known as "Fire Breathing Razor" features a silver, animated wet razor with black dots on the handle and along the sides of the blades. The animated razor appears on the viewing screen while a voice-over states: "It has a lubricated comfort strip, and for a lot of guys, that's not much comfort." The razor then breathes fire that fills the screen. The visual image then changes to the Reflex Action, and the voice-over states: "Introducing the Norelco Reflex Action Razor, a great shave with less irritation than blades." The words "Norelco. Anything Closer Could Be Too Close For Comfort" (known as the "tag line") then appear on the screen with the Reflex Action. Following the court's ruling in Gillette I, the commercials also include a qualifier, stating, "After a 21 day adjustment period," which appears on the screen at the end of the commercial.

The commercial called "The Possessed Razor" features what appears to be the same animated wet razor as in the "Fire Breathing Razor" commercial. This time, however, the razor corrodes and twists its "neck and head," apparently in an effort to evoke recollection of a scene from the motion picture The Exorcist. At the same time, the voice-over states: "A blade can leave you feeling irritated. What would possess it to do that?" Then, the Reflex Action is shown with the voice-over stating: "Introducing the Norelco Reflex Action Razor. A great shave, with less irritation than blades." Again, the commercial ends with an image of the Reflex Action accompanied by the visual tag line and qualifier.

The third commercial, "Twin Blade Serpent," features the animated razor and a voice-over stating: "Every morning, millions of twin-blade razors raise their ugly...