Is Unilever Being Flaky? P&G Accuses Unilever Of Infringing Upon Anti-Dandruff Patents
On October 10th, 2013, Procter & Gamble (“P&G”), the maker of Head & Shoulders anti-dandruff shampoo, filed suit in Ohio federal court against Unilever. According to P&G, the two companies entered into an agreement in 1998 regarding how they would handle future patent disputes. The core of the agreement was that there would first be negotiations, mediation, and arbitration before litigation could commence. Over the last fifteen years P&G and Unilever have been able to resolve at least five patent disputes in this manner without the need for litigation.
The issue at hand arose this past January, when P&G gave notice to Unilever that some of Unilever’s products under its Suave, Dove, Axe, and Clear Scalp brands infringed upon three of P&G’s patents: the first patent mentioned in P&G’s complaint was “anti-dandruff and conditioning shampoos containing polyalkylene glycols and cationic polymers;” the second patent was for “anti-dandruff and conditioning shampoos containing certain cationic polymers;” and the third patent was for “shampoos providing a superior combination anti-dandruff efficacy and condition.” After negotiations and mediation between P&G and Unilever failed, Unilever breached the 1998 agreement by refusing to arbitrate. Instead, Unilever initiated proceedings in the United States Patent and Trademark Office, challenging the validity of P&G’s three aforementioned patents. The nature of these adversarial proceedings were petitions for inter partes review, in which judges would rule on the validity of P&G’s patents during a patent trial. In addition to Unilever’s attempt to strike down P&G’s patents as invalid, Unilever filed suit in the United Kingdom challenging yet another, but unrelated, P&G patent.P&G’s patent infringement claims rest on the notion that Unilever knows and intends (or at least is willfully blind) that its infringing products are sold to consumers to use as shampoos in violation of P&G’s three patents. P&G’s prayer for relief asks for declaratory judgment that Unilever has contributed to and induced infringement, injunctive relief to prevent further infringement, money damages to compensate for the harm caused by the infringement, treble damages for willful infringement, interest, attorney fees, and litigation costs.
As it turns out, P&G is no stranger to intellectual property litigation, which may come as no surprise considering the size of the company ($214.94B market capitalization!). This past May, P&G filed suit against CAO Group, alleging that some of CAO’s at-home teeth whitening products infringe upon P&G’s patented technology, specifically in its Crest Whitestrips products. CAO refuted these allegations, claiming that it holds one-hundred-and-fifty issued and pending patents, and that P&G’s claim is without any merit. General Counsel for CAO emphasized that CAO places high importance on innovating its own technology and securing patents, as well as respecting other companies’ intellectual property rights. Further, CAO argued that CAO’s Sheer White technology contains proprietary substances which allow teeth whitening in just five days, and that Sheer FluorX and Sheer DesenZ are the only products of its kind that contain desensitizing agents while simultaneously delivering fluoride.
Only time will tell if P&G will win these two intellectual property court battles. But in the meantime, if the technology in Unilever and CAO’s products are in fact comparable to P&G’s equivalents, perhaps go for the cheaper alternative (while it lasts!).