Court Orders Breath Asure to Halt Use of Freshener Product Name

The first ruling in a dispute between the makers of products aimed at bad breath left a sour taste in the mouths of both sides.

Breath Asure Inc., a Westlake Village-based company that markets what it called an “internal breath freshener” capsule, was barred from making that claim or even saying that the product works.

That failed to completely satisfy Warner-Lambert Co., the multibillion-dollar consumer products giant whose breath products include Listerine mouthwash, Certs mints, and Clorets and Dentyne gums.

So Warner-Lambert appealed, and won an order this week barring its competitor from calling its product BreathAsure.

The U.S. 3rd Circuit Court of Appeals in New Jersey said Warner-Lambert was likely to be harmed by the continued use of that product name.

“The name falsely tells the consumer that he or she has assurance of fresher breath when ingesting one of the defendant’s capsules. That is not true,” a three-judge circuit panel ruled this week.

Breath Asure is considering whether to appeal the decision, said its executive vice president, Anthony Raissen.

“We strongly disagree with the determination of the court,” Raissen said.

The company changed its advertising campaign after the first ruling, Raissen said. “When you’re David, and they’re Goliath, you have to take a back seat sometimes,” he said.