‘Thanks, But No Thanks’; Pfizer Sues over Free Viagra Advertising

[WSJ_law_blog]

From time to time, companies must confront unwanted advertising. Take the Italian eatery Olive Garden. As reported in this WSJ front-pager, the restaurant has been none too pleased with the “deep love” that Kendra Wilkinson — “a Playboy cover model, television star and one of Hugh Hefner’s three live-in girlfriends” — professes for the family-friendly chain.



Pfizer is dealing with a similar situation involving its Viagra drug. Today, Pfizer’s outside trademark attorneys appeared before the SDNY’s Judge William Pauley to argue a preliminary injunction in the company’s battle against a man named Arye Sachs and his company, JetAngel.com. Frankly, it’s not totally clear to us what Sachs’s business plan entails, though his Web site says the company specializes in out-of-door advertising on military equipment. “Our goal is to re-commission these aircraft in order to share the excitement of jet flight. . . In doing so, we can also provide a new venue for national advertisers and sponsors that has no equal in reaching consumer attention.”

That’s where Viagra comes in. According to Pfizer’s complaint, on September 8 Sachs’s Jet Angel company “transported through Manhattan, and even brought to Pfizer’s world headquarters on 42nd Street, a replica missile prominently bearing Pfizer’s VIVA VIAGRA mark and logo on its side in the same color and distinctive lettering style used in Pfizer’s own VIVA VIAGRA advertisements.” (We pulled the above picture from Jet Angel’s Web site. Apparently, the court has since ordered Sachs to remove the Viagra logo. Hence, the Viva Viagra has since been replaced with “Censored by a Federal Court”.)

The following day, according to the complaint, Sachs & Co. sent an e-mail to Pfizer indicating their plans to return. The e-mail reportedly said:

Jet Angel hopes that you enjoyed yesterday’s visit to NYC including all your free PR. It is the intention to make a second trip next week, with the VIAGRA Missile, and ‘riding’ on top will be two models handing out free condoms!

LOOK AT ALL THE PEOPLE STARRING, THE JOY, THE IMPRESSIONS!!!!

A call to Jet Angel was not returned. A Pfizer spokeswoman said, in a statement, “While we do not comment on pending litigation – we do feel it is important to protect the integrity of our medicines.”

While Sachs is appearing pro se in the case, Pfizer is being repped by Kaye Scholer’s Paul Llewellyn and Patricia Ryder. According to Pfizer’s reply memo, the situation has become a bit tense.

Nor do they dispute that in response to Pfizer’s demands that they cease their unlawful conduct, they announced an imminent “tour” of VIAGRA-branded missiles in New York and “twelve other major cities,” complete with models distributing free condoms depicting Senators McCain and Obama . . . Finally, they do not dispute that they also told counsel for Pfizer, in response to a demand letter, to “**** yourself,” hardly a response consistent with good faith.