Smells like trademark infringement – Car-Freshner v. Bob Ross

A trademark is something that is used to signal to the public the source of a product. A trademark is traditionally thought of as a symbol, word or short phrase but a trademark can be just about anything that serves as a source identifier. United States trademark law grants the user of a trademark the exclusive right to brand goods with the trademark. A trademark can be registered with the Untied States Patent and Trademark Office to strengthen the rights associated with the trademark. If someone other than the trademark owner brands products with the trademark in a way that confuses consumers about the identity of the producer of the products, that can be considered trademark infringement. Stated another way, trademark infringement is when products are labeled with a trademark that belongs to someone other than the person making the products, without the trademark owners permission, that makes consumers think the trademark owner produced the products. A trademark owner can attempt to stop trademark infringement by filing a lawsuit. The lawsuit can request an injunction to prevent future trademark infringement and monetary damages for trademark infringement which has already happened.

Trademark law is relatively flexible, meaning that the definition of a trademark is not limited to words and symbols. Smells, colors and even the shape of a product can be granted trademark status. The key point which defines a trademark is that consumers associate a tradmarked product with the producer of a product.

A case which illustrates when the shape of a product is considered a trademark is Car-Freshner Corporation et al v. Surreal Entertainment LLC et al, 5:18-cv-01037 (N.D. NY 2018). The plaintiff in this case is the manufacturer of scented air fresheners. The products produced by the plaintiff are the iconic little tree air fresheners. The product is a relatively simple two dimensional silhouette of a tree, made of an absorbent paper which is impregnated with a pleasant scent. Cars throughout the United States have little tree shaped air freshers hanging from their rear view mirrors. The plaintiff has registered the tree silhouette as a trademark and has filed the appropriate paperwork to make their trademark incontestable.

The defendant in the case is a marketing company that makes products centered around popular public figures. One of the defendant’s product lines centers around Bob Ross. Mr. Ross is an artist who had a learn to paint television show in the United States. Mr. Ross’s television persona made him a loved and popular personality. Mr. Ross’s instructional videos centered around making landscapes. While painting he would frequently say “lets paint some happy little trees “. The defendant created a line of air fresheners which feature the likeness of Bob Ross. The air fresheners are in the same shape as the plaintiff’s trademark.

The plaintiff took exception to the defendant producing air fresheners which had the same shape as the plaintiff’s trademark. The plaintiff filed a lawsuit for trademark infringement claiming that the defendant’s sale of tree shaped air freshers is causing consumer confusion. The plaintiff has requested that all of the infringing product be destroyed and that the plaintiff be granted monetary damages.

The case was just filed, it will be interesting to see how the defendant responds to the lawsuit.

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