Coca Cola Vs Tropicana

COCA COLA v. TRÓPICANA PRODUCTS
United States Court of Appeals, Second Circuit. 1982.690 F.2d 312.

[Tropicana showed a television commercial with the renowned
American Olympic athlete Bruce Jenner squeezing an orange while saying "It's pure, pasteurized juice as it comes from the orange," and then shows Jenner pouring the fresh-squeezed juice into a Tropicana carton while the audio states "It'sthe
only leading brand not made with concentrate and water." Plaintiff Coca-Cola Company (Coke, Coca-Cola), maker of Minute Maid orange juice, claimed the commer-
cial is false because it incorrectly represents that Premium Pack contains unprocessed, fresh-squeezed juice when in fact
the juice is pasteurized (heated to about 200° Fahrenheit) and
sometimes frozen prior to packaging.]

Perhapsthe most difficult element to demonstrate when seeking an injunction against false advertising is the likelihood that one will suffer irreparable harm if the injunction does not issue. It is virtually impossible to prove that so much of one's sales will be lost or that one's goodwill will be damaged as a direct result of a competitor's advertisement. Too many market variables enter into theadvertising-sales equation.

Because of these impediments, a Lanham Act plaintiff who can prove actual lost sales may obtain an injunction even if most of his sales decline is attributable to factors other than a competitor's false advertising. Johnson & Johnson v. Carter-WaIlace, Inc., 631 F.2d 186, 191 (2d Cir.1980). In fact, he need not even point to an actual loss or diversion of sales. Id. at190-91. The Lanham Act plaintiff must, however, offer something more than a mere subjective belief that he is
likely to be injured as a result of the false advertising, id. at 189; he must submit proof which provides a reasonable basis for that belief, Vidal Sassoon. Inc. v. Bristol-Myers Co., 661 F.2d 272, 278 (2d Cir.1981). The likelihood of injury and causation will not be presumed, but must bedemonstrated in some manner Johnson & Johnson, 631 F.2d at 190. Two recent decisions of this Court have examined the type of
proof necessary to satisfy this requirement. Relying on the fact that the products involved were in head-to-head competition, the Court in both cases directed the issuance of a preliminary injunction under the Lanham Act. Vidal Sassoon, 661 F.2d at 227; Johnson & Johnson, 631F.2d at 189-91.2 In both decisions the Court reasoned that sales of the


plaintiffs' products would, probably be harmed if the competing products' advertising tended to mislead consumers in the manner alleged.3

Market studies ,were used as evidence that some consumers were in fact misled by the advertising in issue. Thus, the market studies supplied the causative link between the advertising andthe plaintiffs' potential lost sales; and thereby indicated a likelihood of injury.








Applying the same reasoning to the instant case, if consumers are misled by Tropicana´s commercial, Coca-Cola probably will suffer irreparable injury. Tropicana and Coca-Coia are the leading national competitors for the chilled (ready-to-serve orange juice market. If Tropicana's advertisement misleadsconsumers into believing that Premium Pack is a more desirable product because it contains only fresh-
squeezed, unprocessed juice, then it is likely that Coke will lose a portion of the chilled juice market and thus suffer irreparable injury.

Evidence in the record supports the conclusion that consumers are likely to be misled in this manner. A consumer reaction survey conducted by ASI MarketResearch, Inc. and a Burke test, measuring recall of the commercial after it was aired on television, were admitted into evidence, though neither one was considered by the district court
in reference to irreparable injury. The trial court examined the ASI survey regarding the issue of likelihood of success on the merits, and found that it contained various flaws which made it difficult to determine for...