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    Something Smells Off: Getty Images Sued Over Silhouette of Air Freshener

    Research Staff, Chilling Effects Clearinghouse, November 23, 2009

    Abstract: Getty Images has been sued by Car-Freshner Corp. for trademark infringement, dilution, and unfair competition over stock photographs of cars that include images of tree-shaped air fresheners hanging from the rear-view mirror.

    Rebecca Tushnet's 43(B)log reports, via Seattle Trademark Lawyer, that Car-Freshner Corp. has sued the online photo-licensing clearinghouse Getty Images for allegedly distributing photos of car interiors that include tree-shaped air fresheners. Seattle Trademark Lawyer posted the complaint here.

    Car-Freshner Corp. has a litigious history with respect to its trademarks of an "absorbent body impregnated with a perfumed air deodorant" in the shape of a pine tree. In 2005, Car-Freshner Corp. sued novelty greeting card company Corndog (and Urban Outfitters, who distributed the product), for producing a scratch-and-sniff Christmas card that played on the familiar pine-tree fresheners. According to the Business Journal, the card included the following text on the back:

    The differences between these unusual cards and an actual car air freshener are: (1) our cards glow in the dark and (2) give off a weird, sticky pine smell only when you scratch and sniff them, instead of all the damn time, until you get car sick and throw up.

    The scrappy card company argued that the cards were a parody of the ubiquitous air fresheners (and thus not likely to be confused with actual products of Car-Freshner Corp.), but the court never got to judge the case on the merits. The Austin-based Corndog ran out of money for attorney's fees and was forced to settle when it lost the fight to keep the case local. (See coverage in The Austin Chronicle.)

    Car-Freshner Corp. also settled a lawsuit against Old Navy last year over t-shirts featuring images of pine-tree air fresheners. In that case, however, Car-Freshner could have shown registration of their trademark pine-tree-silhouette for use on t-shirts--and vigorous efforts to enter the car-freshener-apparel market. (The Car-Freshner website has a clothing store featuring such products as this charming Halloween costume. One size fits most!)

    The claims in the suit against Getty Images are difficult to evaluate in part because it isn't clear what use has been made of the images (and therefore whether such use is confusing to consumers, or, if the Car-Freshner brand is legally "famous," whether such use threatens to dilute the brand). Use not as a mark -- that is, not to identify the source of photographs, but as an element of background scenery -- would not be a "trademark use," and so couldn't be an infringement.

    In trademark law, the use made of the trademark (or confusingly similar image) does matter . . . unless the real-world costs of litigation overpower the aroma of a dubious claim.


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