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This Trademark Dispute has that New Car Smell

Posted Thursday, November 19, 2015 by Daniel Mills

I am a bit of a car nut. I've always liked cars; I follow Formula 1 and Indy Car pretty closely; I like to change my own oil; and I work on my own cars to the extent that I can. I especially like detailing my car and my wife's car. It is very satisfying to take a muddy, coffee stained, dog hair covered interior and restore it to freshness. Even if it only lasts for a week or so until the kids mess it up again. Although my formula for having a fresh smelling car is to simply keep it clean, millions upon millions of people like to add an air freshener to the mix.

If I say car air freshener, how many of you instantly think of the pine tree shaped variety produced by a company called Car-Freshener Corporation? As Andy Newman pointed out in his article in the New York Times, the product is "familiar to anyone who has ever ridden in a cab or wanted their car to smell like one."

This week, Car-Freshener is suing rival Exotica Freshener Company for trademark infringement over a competing line of products. At the heart of the lawsuit is Car-Freshener's claim that the public would be confused by Exotica's palm tree shaped product thinking that it was made by Car-Freshener. To support its claim, Car-Freshener points to the fact that Exotica uses the exact same names, colors, and packaging for its products.For example, The orange tree is coconut, the light blue one is baby powder, the pink one is "morning Fresh" which are the exact same as Car-Freshener's.

Showing similarities is one thing, proving confusion is quite another. It can be tedious and expensive to conduct the types of consumer research that can support confusion claims. There does not have to be actual confusion under the law, but it sure helps a jury decide in favor of it when there is. When I saw the two products side by side, my first impression was that they were from the same company and that the palm tree was a line extension for people who didn't want the pine tree. Can Car-Freshener convince enough people on the jury of the same thing?

I will post a follow up to examine the legal issues that decide this case after the verdict is decided. Until then, if you want your car to smell good, clean it one in a while, don't eat in it, and keep kids from riding in it. If that is not possible, pick your poison: pine tree or palm tree.

This Trademark Dispute has that New Car Smell ›› Ruttler Mills PLLC