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The United States Court of Appeals for the Fifth Circuit on March 26, 2019, affirmed a district court ruling which declined to disgorge Becton Dickinson & Co.’s (BD) profits despite the fact the syringe maker was found liable by a jury on multiple Lanham Act violations. Retractable Techs. Inc. v. Becton Dickinson & Co., 5th Cir., No. 17-40960, 3/26/19.

Retractable Technologies, Inc. (RTI) and BD compete in the US safety syringe market; BD made several false claims in its marketing materials, including claims that it offered “the world’s sharpest needle” and that its syringes wasted less medicine per use. RTI sought disgorgement of profits which the district court denied because the relevant profits were subsumed by a trebled antitrust damages award RTI also received.

Although several key factors weighed in favor of disgorgement—particularly BD’s deceptive intentions and the public interest in making false advertising unprofitable—RTI failed to demonstrate that it lost business to BD, the court said.