## Facts

- Vidal Sassoon, Inc. sold Vidal Sassoon shampoo; Bristol-Myers Co. sold “Body on Tap” shampoo.
- Bristol ran television and print comparative advertisements claiming “shampoo tests with over nine hundred women” showed Body on Tap rated higher than named competitors, including Sassoon, on specific hair attributes.
- The advertisement’s presentation implied a test sample of adult women like the featured model.
- Sassoon alleged the advertisements misrepresented the test population and materially misstated or mischaracterized the tests’ results and methodology supporting the comparative claims.
- Sassoon sued under Lanham Act § 43(a) in the Southern District of New York and obtained a preliminary injunction barring dissemination of the challenged ads.
- Bristol appealed the grant of preliminary injunctive relief.

## Issues

1. Whether Lanham Act § 43(a) applies to misrepresentations in comparative advertising about the results and methodology of consumer preference tests involving specifically named competing brands.
2. Whether the challenged test-based comparative claims could be treated as literally false (as opposed to merely impliedly misleading), permitting injunctive relief without proof of actual consumer deception.
3. Whether the plaintiff satisfied the Second Circuit standard for a preliminary injunction (probable success on the merits and possible irreparable injury).
4. Whether First Amendment concerns required a heightened or altered standard for enjoining allegedly deceptive comparative advertising.

## Decision

- The Second Circuit affirmed the preliminary injunction.
- The court held that § 43(a) reaches misrepresentations about the results and methods of comparative consumer preference tests between named brands.
- The court agreed that the record supported a finding of probable success on the merits as to falsity/misleadingness in the ads’ descriptions of the tests.
- The court upheld the district court’s finding of possible irreparable injury from false comparative claims affecting a competitor’s reputation and market position.
- The court rejected any heightened First Amendment-based requirement, characterizing § 43(a) as a content-neutral ban on false or misleading commercial advertising.

## Legal Principles

- Lanham Act § 43(a) prohibits false or misleading descriptions of fact in commercial advertising, including misstatements about the population, methodology, or outcomes of tests used to support comparative claims against named competitors.
- Statements that purport to report test-based comparative results are factual claims requiring substantiation by tests that match the representations made in the advertising.
- When an advertisement is literally or expressly false, a court may enjoin it without requiring evidence (such as consumer surveys) showing that consumers were actually misled.
- In the Second Circuit, preliminary injunctive relief may issue upon a showing of probable success on the merits and possible irreparable injury (or, alternatively, serious questions plus a decisively favorable balance of hardships).
- False or misleading commercial speech is not protected in a manner that requires modifying ordinary equitable standards for preliminary injunctions under § 43(a).

## Conclusion

The court affirmed preliminary injunctive relief against test-based comparative shampoo advertising where the ads misdescribed the test population and methodology underlying claims of superior consumer preference, holding that such misrepresentations are actionable under Lanham Act § 43(a) and may be enjoined without consumer-deception surveys when the claims are literally false.


Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272 (2d Cir. 1981)