Consumer perception evidence can be an asset or a liability in false advertising litigation. A patent and false advertising dispute between two infant probiotic manufacturers illustrates how relying on surveys that do not adequately measure issues harm a legal strategy.
Background: Competing Infant Probiotics and Competing Claims
Probiotics are live microorganisms that help restore or maintain a healthy gut microbiome when consumed. The benefits of good gut health extend to individuals of all ages, and newborns may be particularly well served by probiotic supplementation.
Researchers at the University of California, Davis developed a probiotic supplement for infants based on Bifidobacterium infantis, which showed promise in supporting gut health and reducing the risk of intestinal and immune complications. UC Davis commercialized this research through Evollve Biosystems, Inc., which markets the product as EVIVO.
Abbott Laboratories developed its own infant probiotic formula, Similac Probiotic Tri-Blend, containing Bifidobacterium longum subsp. infantis b, marketed specifically for preterm infants in neonatal intensive care units (NICUs).
Evolve Biosystems and UC Davis filed suit against Abbott, alleging that the Similac Tri-Blend formulation infringed on their patented probiotic methods and formulations. Abbott counterclaimed, asserting false advertising under the Lanham Act and state law, and seeking a declaratory judgment of invalidity and non-enforceability as to several of Evolve’s patents.
The Survey at Issue
In response to Abbott’s false advertising counterclaims, Evolve retained a survey expert to assess how medical professionals used Similac Probiotic Tri-Blend and which product characteristics they associated with it. The survey asked respondents: “Based on information you may have seen or heard, which of the following characteristics, if any, are associated with Similac Probiotic Tri-Blend?”
The findings from that survey were:
- 5% of respondents associated the product with the claim that “Multi-strain probiotic offers functional advantages over single-strain probiotics.”
- 5% associated it with being “stable at room temperature.”
- 8% associated it with having a “high-quality strain of B. infantis.”
The Rebuttal
Abbott retained IMS’s Justin R. Anderson, PhD, to evaluate the Evolve survey and provide a formal rebuttal. As to the survey’s measures regarding product use, Dr. Anderson concluded that the survey failed to measure the actual disputed use, posed vague and confusing questions, and lacked a proper control. With respect to the association and influence measures, Dr. Anderson’s survey rebuttal identified several additional deficiencies: the survey interviewed the wrong consumer population, tested none of Abbott’s actual advertising statements, used leading language, and again failed to include a control group. Dr. Anderson concluded that a survey measuring only consumer associations, without more, does not constitute sufficient proof that advertising was false or deceptive.
The Ruling
The court issued a summary judgment order in Abbott’s favor on the false advertising claims. Establishing that consumers associate a product with certain attributes is not the same as proving that advertising was deceptive or misleading. Because Evolve’s survey did not ask what messages respondents took away from the advertising, the court held that Evolve had failed to meet its burden of proof. It granted summary judgment in favor of Abbott on the Lanham Act false advertising claims and related state-law unfair competition claims.
In false or deceptive advertising surveys, measuring consumer associations is not a substitute for measuring consumer deception. Surveys must be methodologically sound and precisely targeted to the legal questions at issue. Whether your matter involves patent and copyright infringement, Lanham Act claims, or materiality disputes, the survey evidence must directly address the elements required for liability.
If your opponent’s survey falls short, a rigorous survey rebuttal from a credible expert can expose those flaws and position your client for summary judgment. IMS Legal Strategies’ in-house survey experts design and conduct litigation surveys, and critically evaluate opposing surveys, in matters before federal and state courts, the US Trademark Trial and Appeal Board, and the BBB National Programs’ National Advertising Division (NAD). Contact us to discuss your matter.
