Everyone has seen the tree shaped air freshener dangling from a rear view mirror used to cover up the scent of stale French fries and gym clothes. Air fresheners turn out to be big business. That’s why Car-Freshener Corp of New York is suing Exotica Fresheners of Ohio for trademark infringement, claiming Exotica is knocking off its trademark look right down to the packaging and style of the writing it uses. Car-Freshener wants Exotica to stop imitating its branding and pay Car-Freshener damages for misleading consumers.
Since the 1950s, Car-Freshener has been a major player in the air freshener market. For the last 50 years it has used the same branding and packaging, utilizing cellophane wrapping topped with a yellow card carrying a green tree logo and upward slanted writing. Exotica on the other hand, was launched in 1987 and allegedly is somewhat of a copycat. It has had a few run-ins over the years with Car-Freshener over branding issues, including a trademark infringement suit in 1995 when Exotica used two names trademarked by Car-Freshener, Royal Pine and Vanillaroma. Again in 2011, Car-Freshener sued Exotica for trademark infringement over the name Black Ice. Car-Freshener won both of these trademark suits.
Adding to the list of suspicious similarities, Exotica’s air fresheners come in the shape of a palm tree. Car-Freshener’s trademark freshener shape is the pine tree. Car-Freshener’s air fresheners have always been packaged in cellophane and marked the scent name in upward slanting writing. Exotica’s come in a similar packaging utilizing a similar font and upward slanting writing as well. Some of the scent names and color schemes also appear to have been copied, including “Morning Fresh”, which is a pink tree, and a vanilla tree, which is decorated in an American flag design, “coincidentally” used by both companies. All these imitations have Car-Freshener claiming that Exotica is doing this intentionally to confuse consumers into thinking that the brands are somehow related.
This latest trademark challenge has advanced to trial where a jury will decide whether Exotica has actually infringed Car-Freshener’s trade dress and trademark rights. Functional elements of trade dress cannot be protected via trademark rights, so Car-Freshener may have a hard time getting Exotica to change it cellophane wrapping, but the other similarities might be enough to convince a jury that there is infringement. Exotica claims that the similarities between the two brands are superficial and consumers are not actually confused or misled by the parallels. While Exotica may be able to put on some evidence highlighting the differences between the brands, it may be difficult for it to come away without having to make some branding changes and perhaps paying damages.
If you need a fresh review of your companies trademark issues or have questions about protecting your brand, please contact the trademark attorneys at Trademark Access. Let our experience protect you.