The Exotica Fresheners Company will probably have to add “the smell of defeat” to its line of car air fresheners.
The Ohio-based company recently lost a trade dress lawsuit in federal court in Manhattan against its bigger and more widely recognized competitor, the Car-Freshner Corporation, maker of Little Trees, the pine tree-shaped air fresheners that dangle from a lot of rearview mirrors in America. Trade dress is the appearance of a product or its packaging, and it can be the size, color, shape or texture. It functions the same as a traditional trademark in that it alerts consumers to the maker of the product.
According to The New York Times, Car-Freshner sued Exotica for trade dress infringement after Exotica made some changes to its product packaging that Car-Freshner believed would lead to a likelihood of confusion for consumers and falsely indicate an association between the two companies. Little Trees’ packaging features a gray card that has a yellow section at the top where the pine tree logo is. The brand name runs at a slight diagonal across the front. Exotica’s new packaging for its palm tree-shaped fresheners has a completely yellow card with its palm tree logo at the top, and the brand name is also across the front at a slight diagonal. Beyond this, Exotica has copied a lot of Little Trees’ exact color and scent pairings. In fact, in 1995, Exotica had to stop selling air fresheners with Car-Freshner’s trademarked names. Also, in 2011, Car-Freshner took Exotica to court—and won—over the name of another scent.
This time, Exotica had argued that not only was there no evidence that consumers were ever confused, but also they would most likely take in the look of the entire product and not just the yellow card while shopping. The president of Exotica’s parent company, John Elassir, took the stand and testified that the color and scent pairings are uniform in the industry, and that all the similarities between the two brands were just coincidental. Clearly, the jury didn’t buy it. Exotica is now on the hook for $52,000 and has to change its packaging.
Where creative minds come together
Exotica’s $110,000 in annual sales are a tiny fraction of Little Trees’ $100+ million. So why go after a rival that isn’t really hurting you? Car-Freshner is just fiercely protective of the name and reputation it has built since its start in 1952. There’s even a whole section on the Little Trees website dedicated to trademark information. “We have over twenty registered trademarks (as well as many unregistered ones), and in order to keep them, the law requires that we take action when someone is using them without permission,” reads the site. “So, whether you’re calling your new car-seat cushion-fluffing business “Car-Freshner”, or you’re using our Tree in your pet store ads, don’t be surprised if you get a letter (or more) from our legal team.”
For more information on protecting your trademarks, please contact The Fried Firm.
