I recently asked my husband to “pick up some Oxi”. I know I didn’t use the trademark properly and I have promised myself to be more diligent in my own trademark usage. Still, what I had in mind was something like this:
But he came home with this:
I was confused. How could he get it so wrong? His response was that there was Oxi everywhere. “They all looked the same,” were his exact words, prompting the attorney in me to investigate further.
As it turns out, it seems that businesses, even mega-sized corporations, are sometimes guilty of using trademarks in a way that actually introduces confusion as to the source or origin of the goods, the very thing trademarks are supposed to prevent or limit. Compare and contrast, for example, the following detergents and how they use the Oxi mark.
Note how the ALL brand detergent minimizes the size of the OXI logo, and how the OXI logo does not have a TM or R symbol next to it. Is this to imply that OXI is some sort of common chemical and not a trademark? Or is OXI a trademark or trade name of a chemical additive? I’m not sure. I’m also not sure if OXI is related to OXI CLEAN. (I know this statement will probably prompt lawsuits between the companies, but it’s my honest gut feeling as a consumer and attorney.) On a positive note, I am confident, at least, that my husband would not have confused ALL for OXI CLEAN.
As to the ARM & HAMMER brand detergent, the situation is flipped. The OXI CLEAN logo is so big that it looks like the detergent is OXI CLEAN, while ARM & HAMMER is merely an additive. OXI CLEAN does carry the TM symbol, indicating this is a trademark for certain stain fighters, which is helpful, but the size in relation to the ARM & HAMMER logo is, in my view, likely to lead some consumers to believe the detergent is OXI CLEAN, not ARM & HAMMER.
Of course, we should not forget the colors of the ARM & HAMMER box, because color alone can serve as a trademark. I personally would not have been confused, because I am familiar with the red and orange of the ARM & HAMMER brand. But what about people who don’t shop for laundry detergent as often as I do? (We have a large household.)
My experience with my husband suggests that even large corporations are prone to over-estimating the power of consumers to distinguish one brand from the other. For this reason, I advise every client to always make sure the consumer will be perfectly clear as to the source of the goods. Focus on the basics. Don’t place a trademark in a location that is so “unusual” that buyers don’t realize it’s even the trademark. Don’t get confused over the differences between trademarks and trade names. And do consistently use the trademark as an adjective, not a noun.
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