Case 1:16-cv-06623 Document 1 Filed 08/23/16 Page 1 of 20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE GILLETTE COMPANY,

: No. 16-cy-

Complaint

Plaintiff,
- against -

: Plaintiff Demands Trial By Jury

EDGEWELL PERSONAL CARE COMPANY,
Defendant.

Plaintiff The Gillette Company ("Gillette"), by its attorneys Kramer Levin

Naftalis & Frankel LLP, as and for its Complaint against defendant Edgewell Personal Care
Company ("Edgewell"), alleges as follows:
Introduction

I.

This is an action for false advertising under Section 43(a) of the Lanham

Act, 15 U.S.C. 1125(a), deceptive acts and practices and false advertising under N.Y. Gen.
Bus. Law 349 and 350, common law unfair competition and patent infringement under 35
U.S.C. 101 et seq.
2.

Gillette develops and sells high quality consumer products, including

men's razors and shaving products. Among the products in the Gillette family of men's razors is
a three-blade razor known as the MACH3 Razor (the "MACH3"). Certain elements of the
MACH3, including the docking mechanism that portion where the handle and razor connect
were protected by United States patents until April 10, 2016 (the "Patents"). Among other
products. Edgewell manufactures and distributes private label men's razors and shaving
products. In early June 2016, weeks after the expiration of the Patents, a private label threeblade men's razor with cartridges made to fit MACH3 handles was introduced broadly across the

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country under various different names (collectively "Schick PL"). Schick PL are all
manufactured and distributed by Edgewell, and have been inserted onto shelves at a number of
major national grocers, pharmacies and general retailers. The Schick PL labeling includes
comparative claims that Schick PL "SHAVES AS GOOD OR BETTER THAN MACH3" and
that Schick PL "lubricating gel with vitamin E and aloe [results in] reduce[d] irritation."
Edgewell also manufactures and distributes replacement cartridges for Schick PL, the labeling of
which states that the replacement blades fit MACH3 and then makes the same comparative
claims. These comparative claims are false and misleading as Schick PL does not shave as good
or better than MACH3 and does not result in reduced irritation compared to MACH3. Moreover,
Edgewell began developing, manufacturing, offering for sale and selling Schick PL many
months and likely more than a year prior to the expiration of the relevant MACH3 Patents
and has thereby infringed those patents.
3.

By this action, Gillette seeks to (i) enjoin Edgewell from continuing to

make false and misleading claims that its product is "AS GOOD OR BETTER THAN MACH3"
and that use of its product will "reduce irritation" as compared to use of the MACH3; (ii) require
Edgewell to disseminate corrective advertising; and (iii) recover damages for the substantial
harm caused by Edgewell's false and misleading advertising and Edgewell's infringement of the
MACH3 patents.

The Parties, Jurisdiction and Venue

4.

Plaintiff Gillette is a corporation organized under the laws of the State of

Delaware, with its principal place of business located at One Gillette Park, Boston,
Massachusetts. Gillette develops, manufactures, and markets high-quality consumer products,

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including men's razors and shaving products. Among the products in the Gillette family of
men's razors is the MACH3 Razor.
5.

Defendant Edgewell Personal Care Company ("Edgewell") is a publicly-

traded corporation, incorporated in the state of Missouri with its principal place of business at
1350 Timberlake Manor Parkway, Chesterfield Missouri 63017. Edgewell imports and
distributes its products, including the Schick PL, into the State of New York.
6.

Edgewell claims that it is "one of the world's largest manufacturers and

marketers of personal care products in the wet shave, sun and skin care, feminine care and infant
care categories" with "a portfolio of over 25 brands and a broad global footprint in more than 50
countries." See Edgewell Form 10-K for fiscal year ended September 30, 2015, at 5, available at
http://ir.edgewell.com/company-profile?sclang--en ("2015 Form 10-K"). Among its brands are
the Schick and Hydro and Quattro brands of shaving products, which are marketed extensively
through the world, as well as various private label offerings sold in the U.S. and throughout the
world.
7.

Edgewell also manufactures, distributes, and sells "a complete line of

private label and value-priced wet shaving disposable razors, shaving systems and replacement
blades. These wet shave products are sold primarily under a retailer's store name or under value
brand names such as Personna." See 2015 Form 10-K at 6. The private label product is sold at
numerous national retailers. Although sold under different brand names, the razors and blades
are all manufactured and supplied by Edgewell and are identical.
8.

This action is based on Section 43(a) of the Lanham Act, 15 U.S.C.

1125, sections 349 and 350 of New York General Business Law, and 35 U.S.C. 101 et seq.
This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1331 for

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the claim arising under the Lanham Act, 28 U.S.C. 1331 and 1338(a) for the patent
infringement claims, and 28 U.S.C. 1332 and 1367 for the claims arising under New York
statutory law.
9.

Venue is properly laid in this district pursuant to 28 U.S.C. 1391 and/or

1400(b).
Gillette's MACH 3 Razors

10.

Gillette was founded in 1901 as a safety razor manufacturer and, for more

than a century, has been one of the leading manufacturers and distributors of safety razors, razor
blades, disposable razors, and related personal care products. Gillette pioneered products like
disposable razors, adjustable shaving razors, and razors with spring loaded blades in the United
States. Throughout its history, Gillette has worked to foster innovation in the shaving products
industry and has become one of the most widely recognized suppliers of safety razors in the
United States, with strong brand recognition and customer goodwill.
11.

In 1998, Gillette introduced in the United States the first triple bladed

safety razor, under the trademark MACH3. As a triple-bladed safety razor with progressive
blade geometry and a forward pivot location, MACH3 can be used with less pressure on the skin
and fewer strokes, thereby allowing for a close, comfortable shave.
12.

Since its introduction in 1998, Gillette has made significant expenditures

on promotion and advertising to acquaint retailers and consumers with this product. Gillette's
MACH3 safety razors have enjoyed extraordinary success, with estimated total sales since
inception of over $5 billion in the United States, not counting replacement cartridges or
disposable razors upon which the MACH3 trademark also appears. MACH3 safety razors are
carried in all of the trade channels in which such goods are customarily sold, including, but not

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limited to, mass merchandisers like Wal-Mart and Target, club stores like Costco, grocery stores
like Publix, drug stores like Walgreen's and online retailers like Amazon. Sales of Gillette's
MACH3 safety razors have been continuous from 1998 through the present.
13.

Throughout the nearly two decades in which the MACH3 safety razors

have been sold, Gillette has advertised these products extensively on television, in print, and
online. As a result of this extensive advertising and promotion, consumers are well aware of
Gillette's MACH3 safety razors, and these products enjoy widespread recognition among the
trade and public in the United States.
14.

Beginning in 1998, the MACH3 razor, shaving cartridge and razor handle,

including the point of connection between the razor handle and shaving cartridge, were protected
by U.S. Patent No. 5,787,586 (the '586 Patent"), dated August 4, 1998 and entitled "Shaving
System and Method" (a true and correct copy of which is attached as Exhibit A); U.S. Patent No.
5,813,293 (the "293 Patent"), dated September 29, 1998 and entitled "Shaving System and
Method" (a true and correct copy of which is attached as Exhibit B); and U.S. Patent No.
5,918,369 (the "369 Patent"), dated July 6, 1999 and entitled "Shaving System and Method" (a
true and correct copy of which is attached as Exhibit C) (collectively, the "Patents"), all of which
were valid and enforceable through April 10, 2016. Gillette owns the Patents by assignment, and
has the right to sue and recover damages for infringement thereof.
Edgewell's False and Misleading
Advertising Concerning the Schick PL Razors
15.

Edgewell launched Schick PL in June 2016.

16.

Edgewell includes a prominent package claim of "SHAVES AS GOOD

OR BETTER THAN MACH3" on numerous Schick PL executions and has consistently done so
since launch. The front label of certain Schick PL razors have at all times since the launch

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prominently claimed "SHAVES AS GOOD OR BETTER THAN MACH3." For example, the
front labels of several different packaged executions of the Schick PL razor are displayed below:

FriS

GILL -m
MACF-113
41

001212
...A.. MAC..

PrecisionFPc:
+mammaI-- I
'

17.

The back labels of certain Schick PL razors have at all times since its

launch prominently claimed both that the Schick PL "SHAVES AS GOOD OR BETTER THAN
MACI-13" and that it includes "lubricated gel with vitamin E and aloe to reduce irritation" or

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"smooths the skin to reduce irritation." For example, the back labels of several different
packaged executions of the Schick PL razor are displayed below:

PrecisionFlt

18.

In addition, the front labels of certain Schick PL replacement cartridges

state that the blade "Fits Gillette MACH3" and claims that the Schick PL blade "SHAVES AS
GOOD OR BETTER THAN MACH3." For example, the front labels of several replacement
cartridge packages are displayed below:

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3 Blade
SHAVES AS GOOD OR
BETTER THAN MACH3"

1,1t- FLctmErIr
Cnwritioorts
'OS

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SHAVES AS GOOD OR

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SHAVES AS GOOD OR SETTER

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LUBRICATING GEL WITH

VITAMIN E & ALOE
5 COUNT

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19.

The back labels of certain Schick PL replacement cartridges also contain

the claim that Schick PL includes "Lubricating gel with vitamin E and aloe to reduce irritation"
and that the "cartridges fit both Schick PL and Gillette MACH3 handles." For example, the back
label of one packaged execution of the Schick PL replacement cartridges is displayed below:

lubcfccting gel with Atemla.

sad Medienducerd1.Iic/1

Affeadact blade
edipi FO. din*,

ceActoetahh..h.r.

CAPITAKIGES

Instrucilonctio th,nge carloldget

pAch ha ,dIe Wien fecwald IOitialr
Caviluat Kevp Out of /lath of Child/vit.

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The claim "SHAVES AS GOOD OR BETTER THAN MACH3" has also

been used online.

21.

Based on the testing described below, these claims on the labels of the

Schick PL razor and replacement blades are literally false, false by necessary implication and or
misleading. The claim that the Schick PL shaver and replacement blade "SHAVEn AS GOOD
OR BETTER THAN MACH3" is false because they do not shave as good or better than
MACHI The claim that those products include "Lubricating gel with vitamin E to reduce
irritation" is a comparative claim against MACH3, the only other razor blade referenced on the
labels, and is false because Schick PL does not reduce irritation as compared to MACH3.

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22.

The packaging for all of the Schick PL products was manufactured by

Edgewell and the claims comparing Schick PL's shave quality and reduced irritation to that of
MACH3 were written and purportedly substantiated by Edgewell.
Gillette's Testing Shows That Edgewell's Claims Are False
23.

Gillette has confidential and proprietary testing technology to evaluate the

extent to which shaving leaves nicks and cuts on men's faces. In June 2016, Gillette conducted
such testing on a group of males aged 18-55 comparing the shave provided by Schick PL and
MACH3.
24.

The test involves imaging techniques that capture portions of the users'

faces that were shaved before shaving and within 5 minutes of the shave. A software program is
used to generate the semi-automated count of the number of bloody spots or regions visible in
the post-shave images. The operator of the test was blind to the product assignment.
25.

The results show that SCHICK PL creates a statistically significant

number of greater nicks and cuts than Mach 3.

Edgewell's Patent Infringement
26.

Schick PL was available in substantial quantities in mass-market stores in

the United States, including in New York, by June 2016.

27.

The Schick PL razor packaging provides that the "Blades [are] made in the

U.S.A." and that the "Handle [is] assembled in the U.S.A. from component parts made in
China":
Blades made in the U.S.A. Handle assembled
in the U.S.A. from component parts made in China.
For sale in U S A only. V-11070

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28,

Given the long lead time necessary to develop Schick PL, to offer it for

sale to mass-market stores and distributors, to manufacture and/or important Schick PL and to
sell and deliver Schick PL to mass-market stores and distributors, Edgewell would, by necessity,
have manufactured, imported, used, and/or offered Schick PL for sale in the United States prior
to patent expiration on April 10, 2016.
29.

The table below shows a representative figure from the '586 patent

(Exhibit A) depicting certain inventions related to the razor cartridge and its attachment to the
razor handle, as used in both MACH3 and Schick PL. (See also Exhibits B and C at Fig. 1). For
example, the Schick PL includes a pivotal razor housing.
'586 Patent Figure

$0

FIG. 1

1111

11111

Schick PL
NV.

22

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MACI-13

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30.

The table below shows a representative figure from the '586 patent

(Exhibit A) depicting certain inventions related to how the razor cartridge attaches to the razor
handle, as used in both MACH3 and Schick PL. (See also Exhibits B and C at Fig. 2.). For

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example, the Schick PL has a central base structure with an opening to allow a spring-biased
plunger in the handle to engage a camming surface.
'586 Patent Figure

MACH3

FIG. 2

Schick PL

---$

Z.

10),

1-,

4::--.
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or...6
iv

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0
113

MI

The table below shows a representative figure from the '586 patent

(Exhibit A) depicting certain inventions related to the razor handle, its assembly and the
mechanism by which it attaches to the razor cartridge, as used in both MACH3 and Schick PL.
(See also Exhibits 13 and C at Fig. 3.). For example, the Schick PL handle includes a protrusion

from which the spring-biased plunger extends.

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'586 Patent Figure

MACH3

_.----te.-_ -:,..- -

r.-------

FIG. 3

-2-

Schick PL
1

----4

1
32.

The table below shows a representative figure from the '586 patent

(Exhibit A) depicting certain inventions related to the razor cartridge and the components by
which it attaches to the razor handle, as used in both MACH3 and Schick PL. (See also Exhibits
B and C at Fig. 13.). For example, the Schick PL shaving cartridge includes a housing with a
central base structure that forms a recess to receive the handle.

'586 Patent Figure

MACH3

Schick PL

FIG. 13

Ma

Mill fiiiMI

"Or

(-

,
The Parties' Prior Communications
Concerning Edgewell's False Claims
33.

On July 22, 2016, Gillette informed Edgewell of Gillette's position that

the recently launched private label Schick PL razor (referred to in the letter as the Schick PL),
and replacement blades made to fit the MACH3 handle, were accompanied by superiority claims
concerning the MACH3 that were false and misleading. Gillette requested that Edgewell provide

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substantiation for the superior performance and irritation superiority claims concerning the
MACH3 or cease and desist from making the advertising claims.
34.

On August 2, 2016, Edgewell responded by letter, admitting that it

manufactured the Schick PL and alleging that the advertising claims were based on a "well
conducted product test." Edgewell did not provide the referenced testing, nor did Edgewell
agree to cease and desist from making advertising claims comparing Schick PL to MACH3's
shave quality.
35.

In a subsequent email communication dated August 9, 2016, Edgewell

conceded that the "as good or better" claim was devised by it and that it had offered retailers who
purchased Schick PL the purported substantiation for that claim.

Harm To Gillette And To The Public

36.

Edgewell's false and misleading advertising has caused and will continue

to cause Gillette irreparable injury. Retailers and consumers have come to expect the highest
quality products based on Gillette's 100+ year legacy of inventing and manufacturing industry
leading shaving innovations. By falsely promoting its razor as being "AS GOOD OR BETTER"
than MACH3 and providing reduced irritation as compared to MACH3, Edgewell's actions
threaten harm to Gillette's reputation and that of MACH3, thus jeopardizing Gillette's hardearned standing and market share. Moreover, Edgewell's actions prior to April 10, 2016
impinge upon Gillette's legal rights under multiple valid and enforceable US patents. Not only is
Edgewell falsely passing its Schick PL product off as "AS GOOD OR BETTER" than MACH3,
but they have done so by infringing on valid and known US patents. Unless and until Edgewell
is ordered to cease making its false and misleading claims and issue corrective advertising,
Gillette stands to suffer a loss of its hard-earned sales, goodwill, and consumer confidence that it
may never be able to recoup.
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37.

The foregoing acts have occurred in, or in a manner affecting, interstate

commerce.

First Claim for Relief

(False Advertising)
38.

Gillette repeats and realleges the allegations contained in paragraphs 1

through 37 of the complaint.

39.

The claims and comparisons made by Edgewell in promoting Schick PL

are false and misleading and violate Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
40.

Unless Edgewell is enjoined by this Court from continuing to make these

claims and ordered to retract and correct them, Edgewell's false and misleading advertising will
continue to cause Gillette to suffer a loss of consumer confidence, sales, profits and goodwill,
which will irreparably injure Gillette.
41.

Gillette has no adequate remedy at law.

Second Claim for Relief

(NYGBL 349)
42.

Gillette repeats and realleges the allegations contained in paragraphs 1

through 37 and 40 through 41 of the complaint.

43.

The above described acts constitute a deceptive act and practice, in

violation of Sections 349 of the New York General Business Law.

Third Claim for Relief

(NYGBL 350)
44.

Gillette repeats and realleges the allegations contained in paragraphs 1

through 37 and 40 through 41 of the complaint.

45.

The above described acts constitute false advertising in violation of

Section 350 of the New York General Business Law.

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Fourth Claim for Relief

(Unfair Competition)
46.

Gillette repeats and realleges the allegations contained in paragraphs 1

through 37 and 40 through 41 of the complaint.

47.

The above described acts constitute unfair competition under the common

law of the State of New York.

Fifth Claim for Relief

(Infringement of the '586 Patent)

48.

Gillette repeats and realleges the allegations contained in paragraphs 1

through 37 of the complaint.

49.

By manufacturing, causing to be manufactured, importing, using, and/or

offering for sale the Schick PL razor and cartridge in the United States prior to expiration of the
Patents, Edgewell infringed at least claims 1 and 11 of the '586 Patent.
50.

For example, the Schick PL razor practices the claims of the '586, inter

alia, by the razor comprising a replaceable shaving cartridge, including a pivotal housing and an
interconnect member with a central base structure with a recess, and a handle having a cartridge
support structure shaped to mate with said recess on the central base structure of the cartridge.
51.

Edgewell is not licensed under the '586 Patent.

52.

Edgewell is therefore liable for direct infringement of the '586 Patent

pursuant to 35 U.S.C. 271(a).

53.

These acts of infringement by Edgewell have caused damage to Gillette.

Gillette is entitled to recover damages from Edgewell in an amount not less than a reasonable
royalty pursuant to 35 U.S.C. 284. The full measure of damages sustained as a result of
Edgewell's infringement will be proven at trial.

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Sixth Claim for Relief

(Infringement of the '293 Patent)
54.

Gillette repeats and realleges the allegations contained in paragraphs I

through 37 of the complaint.

55.

By manufacturing, causing to be manufactured, importing, using and/or

offering for sale the Schick PL razor and cartridge in the United States prior to the expiration of
the Patents, Edgewell infringed at least claims 1 and 5 of the '293 patent.
56.

For example, the manufacture of Schick PL practices the claims of the

'293 Patent, inter cilia, by including the steps of providing a housing for carrying one or more
blades and an interconnect member having a pivotal support structure and a base structure
adapted to be removably and fixedly attached to a handle, inserting said pivotal support structure
into a recess in said housing, and retaining said pivotal support structure in said recess.
57.

Edgewell is not licensed under the '293 Patent.

58.

Edgewell is therefore liable for direct infringement of the '293 Patent

pursuant to 35 U.S.C. 271(a).

59.

These acts of infringement by Edgewell have caused damage to Gillette.

Gillette is entitled to recover damages from Edgewell in an amount not less than a reasonable
royalty pursuant to 35 U.S.C. 284. The full measure of damages sustained as a result of
Edgewell's infringement will be proven at trial.
Seventh Claim for Relief
(Infringement of the '369 Patent)
60.

Gillette repeats and realleges the allegations contained in paragraphs

through 37 of the complaint.

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61.

By manufacturing, causing to be manufactured, importing, using and/or

offering for sale the Schick PL razor and cartridge in the United States prior to expiration of the
Patents, Edgewell infringed at least claims 1, 2 and 38 of the '369 Patent.
62.

For example, Schick PL practices the claims of the '369 Patent, inter alia,

by the shaving cartridge comprising a housing carrying one or more blades, a guard, a cap, and a
camming surface, and an interconnect member having a pivotal support structure that unbiasedly
pivotally supports said housing and a base structure adapted to be removably and fixedly
attached to a handle, said interconnect member providing access to said camming surface by a
spring-biased cam follower on said handle.
63.

Edgewell is not licensed under the '369 Patent.

64.

Edgewell is therefore liable for direct infringement of the '369 Patent

pursuant to 35 U.S.C. 271(a).

65.

These acts of infringement by Edgewell have caused damage to Gillette.

Gillette is entitled to recover damages from Edgewell in an amount not less than a reasonable
royalty pursuant to 35 U.S.C. 284. The full measure of damages sustained as a result of
Edgewell's infringement will be proven at trial.

Wherefore, Gillette respectfully requests that the Court:

issue a preliminary and permanent injunction ordering that Edgewell, its
agents, servants, employees, representatives, subsidiaries, and affiliates, refrain from
directly or indirectly using in commerce or causing to be published or otherwise
disseminating any label, promotional materials, advertising or other activities containing
any claim, statement, or comparison that states or implies that Schick PL, sold under any

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brand name, is "IS AS GOOD OR BETTER" than MACH3 or that its use reduces
"irritation" as compared to use of MACH3;
(ii)

issue a permanent injunction ordering Edgewell to disseminate appropriate

corrective advertisements, reasonably designed to reach all people to whom its false and
misleading claims were disseminated, retracting those false and misleading claims;
(iii)

issue a permanent injunction ordering Edgewell to recall all Schick PL

products bearing the comparative claims described above;

(iv)

award Gillette:
(a)

Edgewell's profits, gains and advantages derived from Edgewell's

unlawful conduct, such damages to be trebled pursuant to
15 U.S.C. 1117;

(b)

all damages sustained by Gillette by reason of Edgewell's unlawful

conduct, including all expenditures required to correct the false,
misleading, unfair,

and

disparaging descriptions and

representations alleged herein, such damages to be trebled pursuant

to 15 U.S.C. 1117;
(c)

compensatory damages adequate to compensate Gillette for

Edgewell's infringement of the Patents, in no event less than a
reasonable royalty pursuant to 35 U.S.C. 284;

(d)

Gillette's reasonable attorneys' fees, as provided by 15 U.S.C.

1117 and 35 U.S.C. 285 on the ground that this is an
"exceptional case";

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(e)

exemplary and punitive damages as the Court finds appropriate to

deter any future willful conduct; and

(v)

(0

interest on the foregoing sums;

(g)

the costs and disbursements of this action; and

grant such other and further relief as the Court deems just and proper.

Dated: New York, New York

August 23, 2016
Kramer Lev N is Frankel LLP
By:

bi

old P. Weinberger
orman C, Simon
Aaron M. Frankel
Samantha V. Ettari
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100

Attorneys for Plaintiff

The Gillette Company

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