Manufacturer not liable for distributor’s false ads

GOJO Industries, Inc. v. Innovative Biodefense, Inc., 2015
WL 7019836, No. 15 Civ. 2946 (S.D.N.Y. Nov. 12, 2015)
 
Defendant IBD moved for a preliminary injunction against
GOJO and nonparty distributors of GOJO products barring them from making representations
that GOJO products are FDA approved and from using government agency logos in
an online video. The court denied the motion.
 
GOJO sued IBD for falsely advertising that its Zylast hand
sanitizing products were “FDA approved” and for deceptively using the FDA logo
in ads, as well as for making false claims about GOJO’s Purell hand sanitizing
products. The parties stipulated to an order preliminarily enjoining IBD and
its authorized agent from representing that Zylast products were FDA approved
and from using the FDA logo in advertisements.  IBD then sought a preliminary injunction against
similar “FDA approved” representations in the sale of GOJO products and use of
CDC, World Health Organization, and Health Canada logos in an educational
handwashing video on the Purell website.  IBD’s evidence about “FDA approved” was from
websites belonging to nonparty distributors and a nonparty independent sales
rep.  A March 2014 email chain between
GOJO’s National Account Director and an independent distributor in which the
GOJO employee provided instructions on the correct names for GOJO products and
also provided current product images.
 
GOJO argued that the nonparty distributors were not GOJO’s
agents or under GOJO’s control and that it had removed the logos from the
educational video on the Purell website. “In order for a nonparty to be bound, that
entity must either aid and abet the defendant or be legally identified with
it.” IBD didn’t introduce evidence of an agency relationship with any of the
distributors. Providing basic information about product names and images wasn’t
enough.

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