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CHURCH & DWIGHT CO. v. S.C. JOHNSON & SON

November 23, 1994

CHURCH & DWIGHT CO., INC., Plaintiff,
v.
S.C. JOHNSON & SON, INC., Defendant.



The opinion of the court was delivered by: BROWN

 This matter comes before the Court on plaintiff Church & Dwight Co. Inc.'s motion for permanent injunctive relief. Specifically, plaintiff has applied to this Court for an order permanently enjoining defendant S. C. Johnson & Son, Inc. from advertising that its carpet deodorizing products are "five times better" than baking soda. For the reasons set forth below, which constitutes this Court's findings of fact and conclusions of law pursuant to FED. R. CIV. P. 52(a), the Court will grant plaintiff's motion for permanent injunctive relief.

 I. BACKGROUND FINDINGS OF FACT AND PROCEDURAL HISTORY

 The factual background of this action, as well as some of the parties' contentions, are set forth below. The hearing conducted before the Court consisted generally of cross-examination and re-direct examination of the witnesses presented, as all direct testimony and evidence was presented through affidavits and trial exhibits, except for certain limited direct examination requested by the parties.

 A. COMMON HOUSEHOLD ODORS AND METHODS OF ODOR ELIMINATION

 The pungent odors of cat urine and cigarette smoke permeate this litigation, as the parties to this action, Church & Dwight, Co. Inc. (hereinafter "Church & Dwight") and S.C. Johnson & Sons, Inc. (hereinafter "S.C. Johnson") market various deodorizing products targeted at eliminating these unpleasantries. To fully comprehend this lawsuit, however, one must first understand the concept of the term "odor."

 The Third Edition of the American Heritage Dictionary defines "odor" as "(1) the property or quality of a thing that affects, stimulates or is perceived by the sense of smell; (2) a sensation, stimulation, or perception of the sense of smell." See Pl. Direct Evidence, Testimony of Dr. Amos Turk at P 7. As plaintiff's expert Dr. Amos Turk testified,

 
odors are not substances; they are properties or perceptions. To put this in more concrete terms, cat urine and cigarette smoke are not odors. They are substances that create odors by stimulating a human sensory perception, and thus may be called "odorants." Because they generate unpleasant odors, they are often referred to as "malodorants," and the odors they generate as "malodors."

 Id. Virtually all malodors are volatile organic compounds (hereinafter "VOCs"). See Affidavit of Dr. Peter E. Nott at P 9. Defendant's expert, Dr. Peter E. Nott explained that "[a] substance is referred to as being 'volatile' if some of its molecules exist in the air, in the gaseous or vapor state. If an odor is not volatile, people would not perceive it because the air would not carry it to the nose." Id. Dr. Nott further stated that:

 
It is uniformly accepted as scientific fact that the perceived strength of an odor is a function of the concentration of the odor molecules, or VOCs, in the air. If you reduce the concentration of the odor molecule, you will reduce the perception of the odor. Virtually all odors, and certainly pet and smoke odors, are made up primarily of VOCs. Thus, by accurately measuring the amount of odor molecules, or VOCs, before and after treatment with a deodorizer, one is able to develop a good picture of the efficacy of the product.

 Id. at P 11.

 There are three basic methods used to eliminate malodorant VOCs: (1) absorption; (2) adsorption; and (3) neutralization. Id. at PP 8-11. Absorption involves a material binding or adhering to an internal structure of another material, similar to a sponge absorbing a liquid. See Affidavit of Dr. Daniel M. Ennis at P 17; see also Affidavit of Dr. Peter E. Nott at P 20. Adsorption "refers to a material binding on an external surface of another material," thereby trapping the odor molecule to the surface area of the absorbing material. See Affidavit of Dr. Daniel M. Ennis at P 17; see also Affidavit of Dr. Peter E. Nott at P 20. The process of adsorption is a function of the adsorbing product's surface area. See Affidavit of Dr. Peter E. Nott at P 22. Lastly, neutralization is a chemical process by which an acid and a base react to form a salt and water. See Affidavit of Dr. Daniel M. Ennis at P 17; see also Affidavit of Dr. Peter E. Nott at P 20. Thus, to eliminate common household odors, such as cat urine and cigarette smoke, the deodorizing products marketed by plaintiff employs a combination of adsorption and neutralization, while defendant's products use a combination of all three odor eliminating techniques. See infra discussion at Section B [1-2].

 B. THE CARPET DEODORIZING PRODUCTS, THEIR CHEMICAL COMPOSITION AND THEIR METHODS OF ODOR ELIMINATION

 1. Church & Dwight's Arm & Hammer Carpet Deodorizer

 Plaintiff Church & Dwight manufactures a line of carpet and room deodorizers under the Arm & Hammer name. See Pl. Direct Evidence, Testimony of James E. Barch at P 3. Although the Arm & Hammer carpet and room deodorizers are available in a variety of scents, the active deodorizing agent is sodium bicarbonate, commonly known as baking soda. Id. at PP 4-5. Baking soda's deodorizing capacity is twofold: (1) neutralization and (2) adsorption. See Affidavit of Dr. Peter E. Nott at PP 21.

 Baking soda--a weak base--chemically reacts with acidic odorants to form an odorless salt and water. See Pl. Direct Evidence, Testimony of Dr. Amos Turk at P 9. Moreover, baking soda can also eliminate odors by adsorption, i.e., odorous molecules bind to the external surface of baking soda. See Affidavit of Dr. Peter E. Nott at P 22. *fn1" "Because of the physical structure of baking soda, it has a relatively small surface area to effect adsorption." Id. In regards to pet urine and smoke odor, which consist of primarily of neutral and weak basic VOCs, baking soda's primary deodorizing capability is attributable to adsorption rather neutralization. Id. at P 21. In addition to the baking soda, Church & Dwight's products also contain a mild fragrance which is used to "mask" the malodor. See Pl. Direct Evidence, Testimony of James E. Barch at P5.

 2. S.C. Johnson's Glade Carpet Deodorizers: Regular Glade and Wet'n Dry Glade Formulations

 Beginning in 1992, defendant S.C. Johnson attempted to find a new ingredient "for [its] Glade products that would have a vastly larger surface area than baking soda," to absorb and adsorb malodorous VOCs. See Affidavit of Dr. Peter E. Nott at P 23; see also Affidavit of Catherine Clemency at PP 9-10. After extensive experimentation, defendant S. C. Johnson isolated a particular structure of aluminum silicate known as zeolite, which eliminates malodorous VOCs through adsorption and absorption. See Affidavit of Dr. Peter E. Nott at P 23. S.C. Johnson ultimately selected a particular zeolite that was a selective absorber "which work[ed] effectively without absorbing [S.C. Johnson's] product fragrances." Id. at P 24. Thereafter, defendant S.C. Johnson conducted a test employing a Quantachrome Autoscan Mercury Porosimeter to compare the total surface area of zeolite with baking soda. Id. at P 25. The test revealed that zeolite had 5.6 times the surface area of baking soda. Id. S.C. Johnson began using zeolites in its regular Glade formulation and its Wet'n Dry Glade formulation. See Affidavit of Catherine Clemency at P 10.

 Defendant S.C. Johnson's new regular Glade formulation is composed of 79% sodium sulfate, 17% baking soda, 3% aluminum silicate, and 1% fragrance. See Pl. Trial Ex. 21 at 1-2. Zeolites represent only 3% of the newly formulated regular Glade. Id. Defendant S.C. Johnson's new Wet'n Dry Glade formulation is composed of 94% baking soda, 4% sodium sulfate, 1% aluminum silicate, and 1% fragrance. Id. Zeolites represent only 1% of the new Glade Wet'n Dry formula. Id. Both of these products use a combination of adsorption, absorption and neutralization to eliminate malodorous VOCs. See Affidavit of Dr. Peter E. Nott at P 23.

 C. S.C. JOHNSON'S "ELECTRONIC NOSE" TESTS

 In 1993, scientists at S.C. Johnson began conducting tests with a Photoionization Analyzer, which can accurately quantify the amount of VOCs in a controlled chamber. See Affidavit of Dr. Peter E. Nott at P 12. The S.C. Johnson scientists referred to the Photoionization Analyzer as the "Electronic Nose." Id. The Electronic Nose is a highly sophisticated piece of equipment which detects VOCs through the process of photoionization. Id. at P 13. Photoionization is a process by which an ultraviolet lamp emits a selected energy beam which, in turn, is absorbed by the odor molecules in the controlled chamber. Id. The odor molecules are thereby ionized, and the Photoionization Analyzer measures the amount of ionized odor molecules present in the controlled chamber. Id. In the present studies, the Photoionization Analyzer was calibrated to take six readings every five minutes for a period of twenty minutes. Id. at P 28.

 Next, the scientists applied 15 microliters directly to the Glade base and the baking soda using a microsyringe injected through a port in the controlled chamber. Id. at P 30. The scientists concluded that "the ratio of VOC reduction in Glade's favor was not merely 5 to 1 but infinite, as the baking soda actually increased the VOCs of cat urine, while Glade base reduced the VOCs." Id. To confirm these findings, the S.C. Johnson scientists utilized a Gas Chromatograph to evaluate the effect of baking soda on cat urine. Id. at P 31. The Gas Chromatograph results also demonstrated that baking soda actually increased the VOCs produced by cat urine. Id.

 The scientists also conducted a test in which they compared the pet urine and smoke odor reduction capacity of 50 grams of baking soda and 10 grams of Glade base. Id. at P 32. "In these tests, which were repeated three times, Glade base reduced VOC concentrations from both smoke and cat urine greater than five times as much [as] baking soda. Indeed, the baking soda again actually increased the VOCs in the cat urine test." Id. The scientists also conducted experiments on actual carpet swatches using both the base ingredients and the actual carpet deodorizing products. Id. at P 33-35. These tests also revealed that the Glade product was able to reduce the VOCs emanating from the cigarette smoke and cat urine at least 5 times greater than baking soda. Id. In addition to the regular Glade formulation, the S.C. Johnson scientists conducted photoionization tests with cat urine regarding the Glade Wet'n Dry formulation with only 1% zeolites. Id. at P 36. The scientists concluded that "this formulation was also effective in reducing cat urine VOCs," but did not quantify any ratio as compared to pure baking soda. Id.

 D. S.C. JOHNSON'S "FIVE TIMES BETTER" ADVERTISING CAMPAIGN *fn2"

 After conducting these various laboratory tests, defendant S.C. Johnson began conducting consumer research to "help determine the best way to position [their] restaged product." See Affidavit of Catherine Clemency at P 14. Defendant S.C. Johnson's marketing team determined that "the 'five times better than baking soda' option would not only help inform consumers of our factual findings, but also help dispel the myth that baking soda was the most effective ingredient available at absorbing common household odors found in carpets." Id. Moreover, S.C. Johnson determined that the "'five times better' [claim] offered good results while requiring less advertising expenditure and ranked highest in purchase interest." Id. at P 15.

 In November 1993, Sarah S. DiVall, S.C. Johnson's Associate Research Services Manager, supervised a qualitative market research project concerning the "five times better claim." See Rebuttal Affidavit of Sarah S. DiVall at P 2. During the market tests, ten focus groups composed of three consumers each were exposed to three possible television advertisements, including the commercial which was eventually aired. Id. Thereafter, an independent moderator questioned the focus groups regarding what the potential S.C. Johnson's television commercials had communicated to them. Id. Sarah DiVall observed the consumer groups through a two-way mirror. See Cross-Examination of Sarah S. DiVall dated October 5, 1994. During cross-examination, Ms. DiVall testified that consumers linked the "five times better claim" to how the product actually worked at eliminating odors and did not associate the claim with a five-fold reduction in odor molecules. Id. Ms. DiVall conceded, however, that consumers understood the "five times better" message to mean that S.C. Johnson's products had a five-fold capability of eliminating odors that people smell. Id.

 Thus, in April 1994, S.C. Johnson began its "Five Times Better" advertising campaign on television, on its product cartons, and in various magazines. See Pl. Trial Exs. 5, 6, 8, and 9. Both the audio and visual elements of the television commercial claim that Glade regular formulation and Glade Wet'n Dry formulation perform "Five Times Better" than baking soda. See Pl. Trial Ex. 8. In the audio segment of the television commercial, S.C. Johnson makes the following claims: (1) "Glade . . . is now five times better than baking soda"; (2) "It's five times tougher"; (3) "absorbs tough carpet odors, five times better than baking soda"; (4) "It's five times fresher"; and (5) "It's five times better than baking soda." Id. Defendant S. C. Johnson reinforces its five-fold claim through the use of the following visual elements: (1) five men, sitting around a dining room table, smoking cigarettes in the third frame, followed by five empty chairs around the same dining room table in the fourth frame, and (2) five golden retriever puppies allegedly urinating on a living room carpet in the seventh frame, followed by three puppies in the eighth frame, only one puppy in the ninth frame, and no puppies remaining in the tenth frame in which a word overlay appears stating "Five Times Better Than Baking Soda." Id.

 The "Five Times Better" claim also appeared on the various Glade packages. Id. at Exs. 5-6. Specifically, in large, red and black lettering on a yellow border, on the top front of the package appeared: "ABSORBS ODORS 5 TIMES BETTER than BAKING SODA." Id. Additionally, it is worth noting that the same message appeared on the back of the package. Id. Also, in April, 1994, defendant S.C. Johnson began advertising its newly reformulated products in various women's magazines. Id. at Ex. 9. In the print advertisement, S.C. Johnson claims that its new products "absorb five times better than baking soda. That's five times the absorbing power to keep your home smelling fresh and clean." Id. Moreover, at the bottom of the print advertisement, in large, hold lettering, S.C. Johnson asserts: "It's five times better." Id.

 E. VARIOUS SENSORY TESTS PERFORMED

 1. Plaintiff Church & Dwight's First Internal Sensory Study

 After learning of S.C. Johnson's "Five Times Better" advertising campaign, plaintiff Church & Dwight conducted its own in-house sensory study to compare the efficacy of the newly formulated Glade products with baking soda. See Pl. Direct Evidence, Testimony of Raymond S. Brown at P 13. Specifically, Church & Dwight conducted its sensory tests on the following products: "Glade Potpourri Carpet and Room Deodorizer Spring Orchard; Glade Potpourri Wet'n Dry Formula Carpet and Room Deodorizer Fresh Scent; Arm & Hammer Potpourri Carpet Deodorizer Country Scent; Arm & Hammer Potpourri Carpet Deodorizer Country Scent; and Arm & Hammer Baking Soda." Id. at P 14. The odor panelists used in this first study "were drawn from a pool of Church & Dwight employees who have been trained and are experienced in rating the intensity of odors. . . ." Id. at P 16. Because some of the test products contained fragrance, Church & Dwight attempted to design its sensory test to best control the fragrance effect. Id. at P 15. It "did this by conducting the test over an extended period to allow the fragrance to dissipate and by directing [the] odor panelists to rate only the intensity of the malodor itself and to ignore the fragrance." Id.

 To conduct the sensory test, Church & Dwight employed carpet swatches that had been exposed to cigarette smoke, cat urine, and mildew malodors. Id. at P 18. "Following odorization, the test products were applied to the carpet swatches in an amount reflecting average consumer use, and were then vacuumed up. Some of the malodorized swatches were not treated with any test product, and were instead used by the panelists as malodor references." Id. at P 19. After application of the test products, the panelists evaluated the carpet swatches in paired comparisons at 2, 24, 48, and 72 hours. Id. at P 20-21. The panelists were instructed that the first swatch they "were exposed to should be considered to have a malodor intensity rating of 10. The panelists were then instructed to rate the malodor intensity of the second swatch in relation to the first." Id. at P 21. According to Church & Dwight, these sensory tests revealed that there was "little, if any, difference in the odor elimination properties of the Glade products when compared to baking soda. When compared to the Arm & Hammer carpet deodorizer, the Glade product performed at parity." Id. at P 23; see also Pl. Trial Ex. 21.

 2. The TRC Sensory Study

 Following the first internal sensory study, Church & Dwight "determined that it would be appropriate to engage an outside independent testing firm to conduct independent sensory tests." See Pl. Direct Evidence, Testimony of Raymond S. Brown at P 24. Thus, Church & Dwight retained Dr. Amos Turk and TRC Environmental Corp. (hereinafter "TRC") to conduct additional sensory tests. Id. at PP 24-26. The TRC study tested the following products: Arm & Hammer Baking Soda; Arm & Hammer Carpet Deodorizer-Original Potpourri; Glade Potpourri Carpet & Room Deodorizer--Country Garden; ...


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