We all know that constant fighting is exhausting and can cause headaches or even stomachaches.  A challenger recently brought a fight over stomachache claims brought by headache medicine makers but NAD said enough is enough in these ongoing aspirin wars.  The recent McNeil Tylenol case sheds light on NAD’s views about the scope of its jurisdiction when the claims at issue are the subject of another court’s decision.  Most of the NAD jurisdictional battles take place in the context of a Lanham Act case brought during an NAD challenge, or more recently, unfortunately, when a class action is filed during the pendency of an NAD challenge.  In this case the issue was whether a case decided by the Southern District of New York in 1987 should preclude NAD from considering the current challenge.

The claim in the current case was “Tylenol provides you strong pain relief without irritating your stomach the way Aleve or even Advil can.”  The suggested implied claim was that Tylenol did not cause any stomach upset.  It was undisputed that it could but also that it caused less stomach upset than the other pain relievers.  The claim in the earlier case was “Tylenol doesn’t irritate your stomach the way aspirin or even ibuprofen can.”  The challenger argued that the products in the claim are different in that Aleve is referenced in place of aspirin, a pain reliever not even on the market in 1987.  The challenger also claimed that in the earlier case there was evidence that Tylenol irritated the stomach less than ibuprofen and both irritated the stomach less than aspirin and this was how the court interpreted the claim.  In this case there was not any evidence as to whether Aleve or Advil (ibuprofen) irritated the stomach more.  Nevertheless, NAD concluded this claim had been fully vetted under the Lanham Act and as such it would not review the case.  In our experience, NAD makes best efforts to retain jurisdiction so this one was a bit of a surprise to us but perhaps they just did not have the stomach for this one.