York, with its principal office and place of business at 2 E. 48th St., N.Y., N.Y. Ogilvy & Mather is one of the nation's largest advertising agencies with billings in the United States alone of $200,000,000 annually, and has handled the promotion of consumer products for many of the nation's major corporations including respondent BristolMyers.

3. Bristol-Myers for a considerable period has sold and shipped Dry Ban to purchasers located throughout the United States, and has maintained a substantial course of trade and commerce in Dry Ban as "commerce" is defined in the Federal Trade Commission Act. At all times mentioned in the complaint, Bristol-Myers has been, and now is, in substantial competition in commerce with individuals, firms and corporations engaged in the sale and distribution of spray antiperspirants of the same general kind and nature as sold by respondent Bristol-Myers.

4. Ogilvy & Mather for a substantial period prepared and placed for dissemination advertising materials to promote the sale of BristolMyers' Dry Ban, and was the advertising agency which prepared and disseminated the commercials challenged in the complaint (CX 12, 14, 18). Ogilvy & Mather, at all times mentioned in the complaint, has been, and now is, in substantial competition in commerce with other individuals, firms and corporations engaged in the advertising business.

5. Respondents Bristol-Myers and Ogilvy & Mather have advertised Dry Ban by means of demonstrations and various statements used in connection therewith, as set out later herein, in television broadcasts transmitted by stations located in various States of the United States and in the District of Columbia having sufficient power to carry such broadcasts across state lines.

Dry Ban

6. When Dry Ban was introduced by Bristol-Myers late in 1968, it was promoted as a superior aerosol deodorant competing with such brands as Arrid, Right Guard, Secret, Avon, Mum, Mennen, and others (CX 86, 47 (18)). Spray anti-perspirant products are heavily utilized by the consuming public, and constitute the most important of all aerosol product categories (CX 85). Production of aerosol spray anti-perspirants and deodorants in 1970 amounted to 482,000,000 units obviously involving enormous consumer expenditures (CX 85(13)). Sales of Dry Ban in 1969 amounted to $7,385,000, and grew to $7,891,000 in 1970 (CX 83).

7. Dry Ban aerosol spray anti-perspirant was formulated with an alcohol base (CX 12) which looked clear when sprayed on a surface, whereas major competing brands of aerosol spray anti-perspirants then on the market were formulated with an oil base which, when sprayed

on a surface, produced an oily, opaque and whitish or creamy appearance (Mayers, Tr. 1151-1154; CX 86(6)(13); CX 75(2)).

The Challenged Commercials

8. Shortly after the introduction of Dry Ban it was determined by respondent Bristol-Myers and its advertising agency, Ogilvy & Mather, to exploit the difference between the "clear, clean" and "quick drying formula" of Dry Ban and the "oily, opaque" formula of competing brands (CX 86 (2-6); Mayers, Tr. 1150). A number of commercials were prepared for broadcast over television containing comparative demonstrations utilizing the foregoing strategy (CX 14, 17, 23-24). The five commercials listed earlier herein were ultimately selected for broadcast and were disseminated over network or spot television during the approximately 14-month period between July 28, 1969, and September 11, 1970, at a cost of $5,800,000 (CX 81). "Rusty" was broadcast over network television, "Show-Up," "Glasses," and "Dry Manhattan" were broadcast over both network and on "spot" television, and "Spotty Performance" was utilized only for "spot" broadcast (CX 82). Each contained a comparative demonstration dramatizing the difference between Dry Ban's "clear, clean" appearance and the "oily, opaque" appearance of the "leading" competing spray anti-perspirant (CX 1-5, 6-10).

9. "Rusty," "Show-Up," "Dry Manhattan," and "Spotty Performance" all contain the same demonstration. The demonstration in "Glasses" is somewhat different, although employing essentially the same concept. A film of these five commercials is contained in the record (CX 1-5), and may be viewed with a suitable projector. The commercials on CX 1-5 are identical to those disseminated by respondents for actual broadcast purposes. The "storyboards" for these commercials are also in the record (CX 6-10). "Storyboards" are utilized in the advertising industry for conveying the basic idea and theme for commercials in use or under consideration, but are not fully representative of the actual commercial broadcast (CX 12). The storyboards for "Rusty" (CX 6) and "Glasses" (CX 10) are reproduced herein. The significance of these commercials cannot be fully appreciated, however, without viewing the entire commercial as broadcast over television (CX 1-5).

10. "Rusty," "Show-Up," "Dry Manhattan," and "Spotty Performance" all contain the following sequence: After a preliminary filming of two persons in a scene meant to be humorous, the camera shows a close-up of two cans of spray anti-perspirants, the "leading" brand which is not identified and a can of Dry Ban, and the announcer states, "Compare Dry Ban to the leading anti-perspirant spray." A sequence is then shown in which the “leading” brand is sprayed on a surface over

the words "OTHER SPRAY" and the announcer states, "the leading spray goes on like this." The camera shows a whitish, creamy, and thick deposit where the "leading" brand has been sprayed. Dry Ban is sprayed on an adjacent surface over the words "DRY BAN" and the announcer states, "Dry Ban goes on like this." An apparently clear and dry area is shown where Dry Ban has been sprayed. A finger is pictured running through the deposit of the "leading" brand demonstrating it to be thick and wet. A finger is then run through the area where Dry Ban has been sprayed with no apparent effect, or one so slight as to probably escape notice. The announcer states, "Which do you prefer?" A close-up of a can of Dry Ban is then shown and the label "Dry Ban" virtually fills the television screen. Each commercial concludes with a scene of the characters shown initially singing or stating, "How dry I am" (CX 1-4, 6-9).

11. The commercial identified as "Glasses" commences with a scene of two girls and a man in an elevator. The first girl states she has a "leading anti-perspirant spray" and the second rejoins, "Me too." The second girl then adds, “But mine's Dry Ban." The first girl replies, "Mine helps you keep dry" and the second girl says, "So does my Dry Ban." The second girl then reaches up and takes off the man's glasses, to his surprise, and sprays the first