Little Trees Air Freshener Company Ads Warn People Not To Mess With Its Trademark

from the seems-a-bit-proactive dept

Fri, Jan 16th 2009 5:19pm — Mike Masnick

We've seen a variety of overly aggressive actions concerning trademarks lately that go well beyond the stated purpose (and the letter of the law) concerning trademarks. However, one of our readers, BendWeather, sent in something we hadn't seen before. He was reading the latest (paper) copy of PhotoShop User Magazine and discovered the following advertisement: Little-Trees-Ad

Now, I have no problem with the company, Little Trees, that makes those "car-fresheners" enforcing their trademarks when there's a real violation of the trademark, but it seems quite odd to become so proactive that you would take out an ad specifically warning people that it's a trademark violation "no matter how you use it." That, of course, is false and a misstatement of trademark law... as is the information on Little Trees' own web page about its trademark, where the company incorrectly claims that "the law requires that we take action when someone is using them without permission."

That is not true. The law requires that a trademark holder actively police infringement on its trademarks and activity that would likely cause confusion or dilution of the trademark. That does not mean any use that is without permission. For example, in writing this post about Little Trees' trademark policy we did not ask permission, nor should we need it, since we are commenting on the policy itself. We are not competing with the company, confusing anyone as to the origins of the mark, or diluting the value of the mark, unless you consider explaining how the company is overly stating the rights associated with the mark as diminishing its value (which would be quite the legal argument).

Also, in looking at the ad, the company is being somewhat misleading in claiming that the image is "private property." It is not. It is covered by trademark, which is not the same thing as private property, and the company is doing a disservice to everyone claiming that they are the same thing.

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Filed Under: advertising, air freshener, trademark
Companies: little trees

39 Comments

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Little Tree, 16 Jan 2009 @ 5:29pm

Big Ass
Next time they should consult with a little lawyer before making such a big ass of themselves.

It is probably an attempt at free advertising
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Erv Server, 16 Jan 2009 @ 6:11pm

see the forest thru the trees
I wonder if they aren't directly speaking to someone in particular
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Anonymous Poster, 16 Jan 2009 @ 6:18pm

It's inevitable now...
In before Techdirt gets sued.
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Anonymous Coward, 16 Jan 2009 @ 6:31pm

The fact the ad appears in a Photoshop user magazine should tell you somehing...if only you would listen.
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The Devil's Advocate, 16 Jan 2009 @ 6:57pm

Well actually...
There are knock-offs of the Little Trees design floating around at budget stores. I've seen a few in my days of bargain hunting.
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reed, 16 Jan 2009 @ 7:20pm

Your in big trouble
I am a lawyer who represents the Little Tree Company. You have re-printed our ad in order to benefit your tech blog without our express permission. Since you gather revenue from your advertising we believe you now owe us a large sum of money.

We can fight this out in a long protracted legal battle, or you can just settle NOW.

Please make your check payable to Litte Tree Legal Services. You pick the amount and we will let you know if we are insulted.

-The Legal Mafia
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big bad john aka john the knife, 16 Jan 2009 @ 7:33pm

Re: Your in big trouble
To The Legal Mafia:

I'm an enforcer for the Really Big Tree Enforcement Agency and we are notifying that you are in violation of our property (which is whatever we say it is) rights. Scrape together as much $$ as you can, anything over 7 figures, and if we accept it, we won't break your legs and leave you in a dumpster. Then, send send the same amount every week in perpetuity, or else...

-Big Tree Enforcement

P.S. Uncle Guido says hi to Vinnie and to tell him that his cousin Frankie is looking for him - he better be scarce for awhile.
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Anonymous Coward, 16 Jan 2009 @ 7:36pm

Well given that I guess copies of the "Tree" air freshener aren't legal, and I've no idea how to tell the real from the fake, I guess I just won't buy any "Tree" shaped air freshener just to be safe that I'm not supporting any "bad guys" :)
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Jeff, 16 Jan 2009 @ 7:40pm

Morons
I think I'll design a car pillow, that gives off a nice scent when you squeeze it, and call it CAR FRESHNER!

Little Trees couldn't possibly sue as there is no way in hell someone would get confused between the difference of a pillow, and a fookin tree.
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Anonymous Coward, 17 Jan 2009 @ 12:16am

Re:
Did listen, Little Trees is STILL WRONG.
Sorry.
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Anonymous Coward, 17 Jan 2009 @ 1:12am

Is there an epidemic of Little Trees photo manipulation? Well, I did just see a T-Shirt that had a little tree on it and said "what if this was the only tree left to hug?"

but I don't see how that is detrimental to the business of selling Air Fresheners.
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Peter Blaise Monahon (profile), 17 Jan 2009 @ 6:14am

No surprise here, just trademark owners going about their business
.

No surprise here, just trademark owners going about their business .. if inarticulately (hey, they make stinkin' flat pine tree car ornaments, after all - and only for a buck!)

Opening post:

"... a misstatement of trademark law... as is the information on Little Trees' own web page about its trademark, where the company incorrectly claims that "the law requires that we take action when someone is using them without permission." ..."

"... That is not true. The law requires that a trademark holder actively police infringement on its trademarks and activity that would likely cause confusion or dilution of the trademark ..."

BOTH WRONG!

The "law" does not "require" ANYTHING!

However, as stated, precedent seems to show that registered trademark holders get better protection in court and in actions at the US Trademark Office when they can show that they have been aggressively acting to prevent their trademark from becoming generic or "diluted".

Since Photoshop users tend to be a funnel where familiar images of trademarks get played with, it makes absolute sense for trademark owners to jump into Photoshop user's faces and say,

"Hey, create your own stuff, this is ours!"

You think this is bad? You think this is inarticulate misunderstanding of trademark law and intellectual property law (not "private" property law - geesh!), read some public documents from supposedly in-the-know trademark lawyers themselves!

Hahahahahahah!

.
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Zaphod, 17 Jan 2009 @ 7:20am

In the spirit of levity...
I'd love to see "Glow Ons" (cough, cough) pull off (ahem) an ad stunt like this.
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gene_cavanaugh, 17 Jan 2009 @ 10:19am

Little Trees trademark
RIGHT ON, Michael! I agree completely, though I would say that instead of "law requires" it is more accurate to say the "law allows", since the law simply permits you to combat dilution of the trademark, if you so choose.
It is very unfortunate that sometimes well-heeled lobbyists or companies do get law enforcement involved - that is a severe distortion of the law, IMO.
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Anonymous Coward, 17 Jan 2009 @ 11:58am

The law isn't so Simple...it's just twisted by the attorneys for and against
Read this case for a primer on a true case tried in a court of law. Attorney Bruce Kaser is the defendant, it's also interesting that Bruces Kaser is a practicing IP attorney. Kaser in testimony perjured himself to the court. At Hearing dated Oct. 30, 2002, when asked “Do you have a time frame when you expect to enter into the marketplace with this product?”, Mr. Kaser answered, “I don’t have a specific time frame right now.” (Id.) Mr. Kaser testified that petitioner is not presently engaged in any other business except developing the product, and that petitioner has not engaged in any other business in the past except developing the product. (Id. at 73.) Yet, Kaser is the the Attorney of Record in the matter Q-Pharma, Inc. v. Andrew Jergens Corp., No. C01-1312P (W.D. Wash. Sept. 10, 2002)http://www.ll.georgetown.edu/federal/judicial/fed/opinions/03opinions/03-1184.html DECIDED: August 14, 1996 http://www.ll.georgetown.edu/federal/judicial/fed/opinions/95opinions/95-1531.html Bruce A. Kaser, Miller, Nash, Wiener, Hager & Carlsen, of Seattle, Washington, argued for defendant-appellee. Argued and Submitted May 6, 2002—Seattle, Washington Bruce A. Kaser, Miller Nash LLP, Seattle, Washington, for the appellant. http://vlex.com/vid/18470393 9 At the time the petition to cancel was filed, Mr. Kaser was a lawyer at Miller Nash LLP, the law firm which filed the proceeding on behalf of petitioner and which remains counsel of record for petitioner. Mr. Kaser now is a partner at another law firm, David Wright Tremaine. 10 Indeed, it appears that petitioner, Nobelle.com LC, is as likely to end up in the winery or orchard business as it is to end up in the business of manufacturing and selling telephone products. When he was asked “Are you seeking to engage in any other business other than the power supply products for Nobelle.com?”, Mr. Kaser replied in the affirmative, explaining that “There’s a very good chance that I’ll be starting up a local orchard or perhaps a winery and I may use the name in connection with that. I haven’t decided.” (Kaser depo. at 73.)
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Anonymous Coward, 17 Jan 2009 @ 12:06pm

Re: The law isn't so Simple...it's just twisted by the attorneys for and against
The link to the primer case http://www.uspto.gov/web/offices/com/sol/foia/ttab/other/2003/30454.pdf
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Audie Hopson, 17 Jan 2009 @ 12:14pm

Law requires vs Law allows
This is nothing new, telephone companies, credit card providers, and many others use such terminology any time they want to raise their rates. Simply blame it on the regulators! Apparently bald faced lie's are permissible.
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mark, 17 Jan 2009 @ 1:16pm

Those things make really good emergency fire starters, like if you get stranded somewhere...
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Chris, 17 Jan 2009 @ 1:54pm

Company has bad attitude...the lose a customer, simple.
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Peter, 17 Jan 2009 @ 2:38pm

Dufus companies
Their products aren't worth anything at all. Unless of course you want to make your car smell like a french prostitute, (darnit now I have insulted hardworking French prostitutes, Sorry girls).
Their understanding of Trademark law and infringement has been damaged by the odor of their inventory. Its amazing how much damage can be done to mental capacity by disgustng overpowering odiforous chemical compounds.
Keep your little trashy trees you crap mongers. Its suprising that you haven't trademarked them as vacuum cleaners, after all, they really SUCK.
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Bill M., 17 Jan 2009 @ 8:15pm

It's not just a cute little ad...
http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid%3A349745
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Anonymous Coward, 18 Jan 2009 @ 12:49am

Re: No surprise here, just trademark owners going about their business
It's amazing that people will go out and pay thousands of dollars for sophisticated computers and software and then "play with" the Little Trees trademark. I'd raise quite a stink (Pine scented of course) if I were them too. This must be stopped!
- viva los usuarios del photoshop de los pequeños árboles
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Earl, 18 Jan 2009 @ 1:01am

My air Freshiner ain't mine?
Ifin I got one of these things hangin in my ol pickup, it's private property ... even if I put it in my trailer or Bobby Lee's out house? Dang, I thought I could do what I wanted with it without havin to ask permision from some darned ol lawyer.
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charlie potatoes, 18 Jan 2009 @ 11:55am

BOYCOTT
Ok, I never bought one of their crappy little smelly assed trees, but now ... I intend to buy even less.
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Anonymous Coward, 18 Jan 2009 @ 2:12pm

Uh - oh
Now come every December I will need to pay a license fee for the privledge of having the likeness of a pine tree in my livingroom.
Damnit
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RI, 18 Jan 2009 @ 2:46pm

OH No
I bought one from a store. It was private property. Now I can't use it.
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Anonymous of Course, 18 Jan 2009 @ 10:01pm

Icons
Now all I can think about is the movie
Repo Man. Damn you, Little Trees!
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Anonymous Coward, 18 Jan 2009 @ 10:47pm

Sounds like the perfect spark to set off a new PHOTOSHOP CONTEST!! WOO WOO
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JPFife, 19 Jan 2009 @ 2:16am

Quote: "We have over twenty registered trademarks (as well as many unregistered ones), "

Unregistered trademarks? Surely a non sequitur.
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Rez, 20 Jan 2009 @ 3:19pm

Little Trees, Se7en?
All I can think of when I see 'Little Trees' that scene in the movie "Se7en," where the cops break into a filthy apartment strung with literally hundreds of Little Trees, only to find the mutilated, desiccated, near-dead victim of "John Doe." I'm sure *that* did wonders for Little Tree sales.
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Vrtigo1, 22 Jan 2009 @ 8:13am

You're inserting claims where none exist
The ad doesn't claim a trademark violation, "no matter how you use it". It may insinuate it, but it doesn't go so far to actually say it. It claims that the design is private property, which is not the same thing as claiming a trademark violation. As pointed out in the post, the "private property" phrase is dubious, but you should be clear on the two separate issues here.
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Anonymous Coward, 25 Jan 2009 @ 10:58pm

Re: OH No
lol
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Bruce Kaser, 10 Feb 2009 @ 9:39pm

Re: The law isn't so Simple...it's just twisted by the attorneys for and against
Hey, anonymous coward, your comments are interesting. Just so you know, it did take a while for the hazelnut trees to go in...and I was planning something different then than now. But the first 30 acres finally went into the ground about 5 years ago. We're planning on adding another 19 acres in two years. If you are interested, it takes about 10 years for the trees to become fully productive; yield is slightly more than one ton per acre; and the price has been holding steady at around $1.00 per pound (slightly less this year)...not much money in hazelnuts, really, unless you shell them and sell under a label. You'll be interested in knowing that a new tree variety was released this year that is fully resistant to the eastern Filbert blight. Know anything about the Jefferson variety? Send me your real email address and I'll email you a couple of photos of the orchard in the wintertime, at least if you think you are interested. As for the wine...that got started a little late too. But you can check out my picture at www.rockmeadowcellars.com along with some good friends. Let me know if you want on the mailing list, although we can't ship out of state. Yep. Its not what I want to do, just yet, but I'm trying. If things go well, I'll be doing something different in about 10 years...watch out for an interesting Pinot label, then, if you like Pinot. Thanks.
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CadeRageous, 8 May 2009 @ 12:40pm

have been for months
I've seen these funny/terribly designed ads for months. They place them in many design rags. But this does heighten their icon status in a way too.

We all love the little trees--don't lie.
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Anonymous Coward, 4 Aug 2009 @ 1:21pm

They have to make money somehow
You know what is funny is that they (CAR-FRESHNER) actually employs people to surf the web to find "illegal" images of their stupid air fresheners. They have jobs in the "legal" department.

More funny than that is they encourage all employees to turn in any "sightings" of trees in any media so that their Legal team can see if it is licensed or not.

Even more funny than that is in return. the employee who reports the "sighting" can get a coupon for a free lunch at their god-forsaken cafeteria.
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Gareth Botha, 10 Sep 2010 @ 6:38am

I see these Little Tree ads in HOW Magazine, Print Magazine and Communication Arts magazine too. Is there some reason they are targeting graphic designers, I wonder? I've found it rather off-putting. The ad appears to talk down to and patronize their audience. I'll never be buying any of their products after seeing their ads.
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Mark May, 29 Jun 2011 @ 3:06am

hi
Dear Sir/Madam,

Am Mark May and i want to buy some Air Fresheners, i want you to email me with the types you have as well as the flavor you have.
Thank you
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Little Tree Lover, 2 Jul 2011 @ 12:16am

Little Trees
My dad has one of the Little Trees in Vanillaroma in the car its a real one but in the shops I sea tons of American brands trying to copy it.
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C, 4 Nov 2015 @ 4:21am

Chinese
Threaten them with the Chinese, they will make a 10 billion copies flood the market and then what ?
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