Trademark Usage and an Everyday Example

Long-term Relationships and Trust
October 26, 2018

Trademark Usage and an Everyday Example

I recently asked my very capable husband to “pick up some OxiClean” when he was at the supermarket, and he returned home with the following product:

Those of us who regularly use the product would know that I meant for my husband to purchase the OxiClean* stain remover for laundry, which is located in the laundry aisle, and near – but not with – the regular laundry detergent. Even though I didn’t use the trademark properly (I used it as a noun), I did use the mark in the same manner as the trademark holder. See the common OxiClean commercials.

At first, I was a bit irritated with my husband for buying the wrong product while we had whites waiting for the wash, until I realized this was a perfect learning opportunity. The product he purchased was Arm & Hammer* brand laundry detergent “with” OxiClean brand stain fighters, whatever those might be, and, in retrospect, his mistake was reasonable.

The function of a trademark is to identify the source or origin of the service or goods, but here, the mark confused the consumer.

Looking at the box, one can see that the phrase “OxiClean” is displayed prominently in the center of the box. It is also the largest font on the box, and is prone to causing a distracted consumer, or one who doesn’t purchase the product often, as describes my husband, to overlook the Arm & Hammer brand, which iis placed off-center and in smaller font, relative to the OxiClean mark.

Sure, Arm & Hammer has many arguments they can make in response. The box and red imprint are the famous Arm & Hammer brand colors, and the box was located with – not next to – the laundry detergents, so a reasonably aware consumer would not have been confused.

And, of course, attorneys reading this post will have many counterpoints that can be made, but that is not the point of this post, because it’s not about winning some lawsuit. Instead, the point of this post is that companies must remain diligent, even long after they are famous, to minimize the potential for confusion, and in turn maintain a strong brand. Put another way, even mega corporations slip up sometimes.

Now, for the fun of it, the following is an example of a laundry detergent that, in my opinion, does a better job with their trademark placement – at least when it comes to the placement of the primary brand. Specifically, the all** detergent brand, is both in the center and the largest font, while the oxi mark is smaller, and the “with” phrase is prominent.

But here’s where things turn interesting. I originally intended to use the ALL brand detergent as an example of the proper way to use the OxiClean mark to show they incorporate the OxiClean magic, but I was mistaken. The ALL laundry detergent simply placed the term Oxi at the bottom, and, after reviewing, it is not clear to me that OXI is related to OXICLEAN. In fact, there is no TM or R symbol to indicate that OXI is a trademark at all. Ooops.

Is this an infringement? Or is this a hint that OXI and/or OxiClean are becoming generic?

Church & Dwight? Henkel? What do you think?

OxiClean brand cleaners and Arm & Hammer brand detergent are owned by Church & Dwight Co., Inc..

ALL brand laundry detergent is owned by Henkel North American Consumer Goods Inc.

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