We all know that litigation is expensive, time-consuming, and fraught with risks.  That’s why we love it.  But why would an otherwise sane company choose to repeatedly sue a competitor for false advertising? Some reasons are obvious: a successful false-advertising suit can force a rival to spend millions of dollars in new or corrective ads, and possibly even subject it to damages.  But history shows us that these potential rewards are not easy to obtain, and a plaintiff runs the very real risk of having its own advertising attacked.  The initial salvo of litigation often blossoms into a proverbial mushroom cloud of counterallegations, leading to internecine warfare among industry rivals.  The annals of false-advertising litigation include an epic contest that sheds some light on this vexing question.

In 2009, Coppertone fired off two false-advertising suits against its rival Neutrogena in rapid succession.  Neutrogena then launched false-advertising claims of its own against Coppertone, with both companies challenging the other’s claims to superior sun protection.  After a bench trial, the U.S. District Court for the District of Delaware held that both companies’ advertisements violated the Lanham Act.  In a sharply worded footnote, the court scolded both parties for their “essentially meaningless” advertisements and for misleading the consuming public.

Despite this cautionary tale, other competitors continue to face off in court over the contents of their advertisements.  For example, the maker of “POM Wonderful” pomegranate juice is currently defending its packaging and advertisements over claims by a rival that POM deceives consumers by masking the fact that its juice is made from concentrate.  As 2011 kicked off the new decade, the district court denied cross motions for summary judgment, sending the case on for trial.  Even more recently, two kitty litter makers have squared off in a cat fight over commercials for Clorox’s Fresh Step® litter, claiming that “cats know what they like” and prefer that brand over Church & Dwight’s Super Scoop® product because it “is better at eliminating odors.”  According to the complaint, the commercials’ express message—that cats prefer Fresh Step because of its odor-eliminating prowess—must be false because “cats do not talk.”  With the complaint filled with details of feline bathroom habits and scatology, the ensuing litigation promises to be anything but tame.  Perhaps Garfield and Top Cat will be facing off against each other as “expurrrrt witnesses.”

The jury is still out on whether repeated false-advertising cases between competitors is a wise business strategy.  But if the decision is made to cross the litigation Rubicon, it is essential that a false-advertising claim be supported by surveys and other reliable direct evidence that the offending advertisement is both false and materially misleading.  Otherwise, one likely will need plenty of sunscreen, all the health benefits of pomegranate juice, and boxes of absorbent kitty litter to withstand the heat, stress, and strain of litigation.