If You Don't Get The Matching Brand Paper Towel Out Of A Dispenser In A Restroom... Is That Trademark Infringement?
from the wash-your-hands,-everybody dept
The more you travel, the more you realize just how many different options there are in restrooms around the globe to enable people to dry their hands. However, if you see a particular brand of paper towel dispenser, do you expect that a related brand of paper towels will come out of them? And should it be trademark infringement if they do not? Apparently, the company Georgia Pacific makes the EnMotion brand of paper towel dispensers for restrooms -- and includes a contractual provision that those used will only use EnMotion brand paper towels. Another company came up with competing paper towels that worked in the EnMotion dispenser. GP sued the company making the replacement paper towels, claiming contributory trademark infringement -- saying it's akin to a Coca-Cola soda machine, where people expect Coca-Cola to come out of it. That may be true... but does anyone actually expect a specific brand of paper towel to come out of a random dispenser? GP, of course, found "experts" to conduct studies that said yes, but that seems difficult to believe. Perhaps I'm missing something, but does anyone out there actually expect a specific brand of paper towels out of a particular dispenser?GP is claiming that the other company is guilty of contributory trademark infringement, which would mean that anyone using these replacement paper towels could be guilty of direct trademark infringement, which seems like a blatantly ridiculous reading of trademark law. The lower court agreed that this was ridiculous and found no evidence of any kind of confusion among the distributors involved in selling and stocking the EnMotion dispensers. However, the appeals court points out that it also needs to be considered whether or not the real end-users were confused -- and notes that there's significant evidence that people might be confused. I still don't buy it. I can't recall ever even caring what brand paper towels comes out of a dispenser. If asked I might just say the same brand as the dispenser company, but that's just because it's the easiest answer, not because it needs to be.
For now, the case has been sent back to the lower court to determine whether or not end-users are really confused. Perhaps the court can hold part of the session in the court's restrooms to determine whether or not there's a real "likelihood of confusion."
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Filed Under: enmotion, paper towels, trademark
Companies: georgia pacific
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Printers
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Re: Printers
Contrarily, I am at liberty to use any generic brand I wish for my own use, since no-one (except maybe my printer) is likely to be 'confused'.
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Re: Printers
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So basically they're arguing it's copyright infringement if some *thing* else gives me the wrong paper towel .. ? If there was a big sign on each enmotion dispenser that said something like "Every time a wrong brand piece of paper leaves this dispenser, copyright lawyers kill a kitten" I might consider it a worry if the wrong paper came out.. but if lives were not depending on it, I, would not give a rat's - like I figure most other people.
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Trademark Bolsheviks!
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Who is the customer?
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Re: Who is the customer?
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Re: Re: Who is the customer?
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Re: Who is the customer?
If some-one who does buy paper towels uses this machine and gets low quality, then they may be dissuaded from buying the presumed brand, seeing it as low quality.
That said most people just wouldn't give a crap.
A Coke machine could contain Pepsi as long as the button read Pepsi, and the customer was informed of their purcase (I would guess this doesn't happen due to these machines actually being owned most of the time by Coke), so maybe the solution is to just put a small sticker on the paper towel dispenser saying who made the towels themselves.
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...
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Re: ...Paper towels
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Re: Re: ...Paper towels
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End users?
Has GP (or any rival manufacturer) ever run a consumer campaign to raise brand awareness of their paper towels? GP is implying that end users care deeply about this, so presumably such campaigns could be very profitable.
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Things keep looking better and better every year LoL
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How about...
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Re: How about...
It can fix anything including legal troubles :)
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Re: How about...
Zero chance of confusion or trading on another's reputation.
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Wrong lawsuit?
Isn't this a contractual issue, not a trademark one? I agree that it does seem like a pretty absurd reading of trademark law, but it also seems like a clear contract violation, so unless the contract is illegal, why aren't they pursuing that?
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Re: Wrong lawsuit?
A builder subcontracts out the bathrooms, the tenants or property owner order the materials and another company has the staff that fills them. Who do you sue?
The building subcontractor's not filling the dispensers. The property management isn't bound by the contractor's agreement with GP. And those doing the filling didn't buy either.
No, far easier to sue your competitor than go after the contract.
I say just burn GP's HQ to the ground. It's easier.
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Re: Wrong lawsuit?
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Wrong lawsuit? Or ANTITRUST violation.
Lets look at part of antitrust law.
Exclusive dealing refers to when a retailer or wholesaler is ‘tied’ to purchase from a supplier on the understanding that no other distributor will be appointed or receive supplies in a given area. When the sales outlets are owned by the supplier, exclusive dealing is because of vertical integration, where the outlets are independent exclusive dealing is illegal (in the US) due to the Restrictive Trade Practices Act.
Looks like that can easily be a violation of antitrust.
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Re: Wrong lawsuit?
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Re: Wrong lawsuit?
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Paper coming out of a paper dispenser is for me like water coming out from faucets, why does it matter?
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Re:
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Re:
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It should sue the company using the dispensers...
As a consumer, my only concern is if the dispenser displays the brand name. Although admittedly, the brand of napkins might be irrelevant to most people, the same rule should apply to all products. If the brand of napkins is not important, what about the brand of hand soap? What about the brand on a condom dispensing machine? If I saw a "Durex" dispenser, I'd be annoyed to find an unbranded "made in Zakizikistan" condom instead.
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Devil's Advocate
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Re: Devil's Advocate
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I thought this was settled
See http://www.justice.gov/atr/public/hearings/ip/chapter_5.htm#ii
Regarding (1): A paper dispenser and paper that goes into it are separate products.
Regarding (2): GP is trying to require that someone who buys a GP paper dispenser must buy GP paper.
Regarding (3) and (4): Don't know. But, I am assuming GP is a major player in both markets, nationally.
They are trying to get around the per se rule by pretending this is not a restraint on trade but protection of people who is use restrooms in their clients' locations. It is certainly a creative way to try to create market power in the market for a generic good.
That seems to me to be a per se violation of Section 1 of the Sherman Act:
And the Clayton Act:
However, as noted on page 26 of the decision, von Drehle failed to pursue this.
I think it is a missed opportunity.
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Woohoo - Free Money!!!
*Patent pending for this particular lawsuit idea - if you try and use this same idea, I will sue you, too!
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Mimi and Eunice.
There must be something wrong when people start fighting to see who can provide paper to a paper dispenser.
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But in answer to your question. I don't expect to get any particular brand in my paper towel dispenser.
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Re:
And as someone said above, it's not the end users that are really part of this, it's whoever is buying the supply that would feel the effect of any trademark issues.
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It's definitely not a trademark violation though. If the company had a contract with the venue to provide the paper to go with the dispenser, then it could possibly break the contract. But if the dispenser was sold separately with no such contract, and the company happens to offer paper that the venue doesn't use, then tough luck. That's called competition.
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Cola machines aren't a good comparison everywhere. . .
It usually doesn't happen these days because pepsi offers huge annual kickbacks if only pepsi products are sold on the property, though, and in a lot of places both companies now directly own and stock their machines as opposed to leasing or renting them to middlemen.
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paper
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Can I falsely advertise as long as there is no cost associated?
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It can't matter...
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Damage the brand?
But, is that what they are arguing? It's not clear to me...
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Here, someone uses the non-EnMotion paper towel that comes out of the EnMotion dispenser, thinks it sucks, and forms a negative opinion of the EnMotion mark and the mark holder (GP) as a result. GP can then put forth actions based on both the contract and the trademark misuse.
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The caveat is that its free, if you start charging money, put coke on the button (not the giant plastic shell) and then give a no-name brand, you have defrauded your customer by calling it one thing and selling something else. Now you could get around this by using generic names on your buttons, "cola, Clear Cola, Diet Cola, etc" are all generic enough that its clear your selling a cola but it may not be coke (even if coke is in the plastic shell).
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Re:
GP's coke example isn't a good one.
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What's the definition, "a moron in a hurry???"
So if I was a developer of large commercial properties and I happen to see one of these machines constantly malfunctioning it's not likely I would even consider the machine at all. While a restaurant patron may not care what the brand of paper is, or even what the brand of the dispenser is, I as a developer would care that the brand of the dispenser didn't work so I wouldn't select it.
I don't know though if the generic manufacturer or the person filling the dispenser would be guilty of the trademark infringement, but I would think it would be one or the other. And since the manufacturer is being accused of contributing to the infringement I would think that even this case is claiming the person filling the machine is the one infringing, and the generic manufacturer is only contributing to the infringement by making a product the right dimensions...
little mikee, you can't have it both ways here, either the moron in a hurry can be confused or he can't, it doesn't seem to matter if he cares or not.
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If I see a brand on a dispenser, I think "oh, this dispenser was made by company X", instead of "oh, this dispenser dispenses things made by company X". If asked about the brand of the things dispensed, I would look in the nearby garbage for the wrapper they came in (which is removed before putting in the dispenser, at least for paper towels).
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Re:
But if there were consistent malfunctions of the stapler, I might try a different brand of staples after trying to troubleshoot the stapler.
If it malfunctions no matter whose staples I use, it's a defective stapler. If it works with one brand but not another, I'd likely keep away from the non-working brand, maybe curse the stapler maker for making my life difficult. I mean, they're fricken staples, c'mon.
But if it's someone else's stapler that I borrowed, I'd be hard pressed to determine the staple manufacturers from the just the staple itself - they're fricken staples. I'd be more suspect of the stapler. As I would if a paper towel dispenser didn't work properly. I'd suspect the dispenser over the towels. Paper towelling is pretty basic stuff, not a lot of variation and by this time difficult to screw up. It doesn't come out, it's a dispenser problem, not a towel problem. Or maybe the property manager ordered the wrong size supply for the dispenser, or hasn't maintained the dispenser.
In conclusion - I would not think less of the towelling product if there is 1) an obvious issue with the dispensing method or device, and 2) the towelling is by all accounts the same stuff all over and the only thing on offer, so nothing to compare it to, like a competing dispenser.
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inkjet
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Gold-Plated Paper and Reach of Trademark.
http://pacer.ca4.uscourts.gov/opinion.pdf/091942.P.pdf
Relevant facts: the dispensers are leased by Georgia-Pacific to the distributors, and subleased to the restroom owners. They are of a no-touch design, in which an electronic sensor causes the paper to feed. Georgia-Pacific chose a distinctive paper width, to be incompatible with existing paper dispensers, and chose to vend the dispensers in conjunction with the kind of clothlike paper towel one buys in the grocery store and uses in the kitchen, rather than the brown paper customarily used in public restrooms. The grocery store product is naturally more expensive. The defendant, Von Drehle, responded by cutting the standard brown paper to the correct size, and selling it to Georgia-Pacific's distribution chain to sell on to their customers.
There would appear to be a market opportunity for someone to build a no-touch dispenser for standard paper towel. The considered opinion of the market appears to be that clothlike paper towel is only needed when one is handling food. For restrooms, the brown paper is good enough. Come to that, one could build a complete sink module, operating on the no-touch system: water, automatically regulated to blood-temperature, soap dispenser, and hot-air dryer.
The appeals court held that the relevant public for trademark claims is the person who sees product Y, purporting to be product X, forms an opinion of the quality of product X which is actually based on the quality of product Y, and who might therefore chose not to buy product X. For example, if the manager of the Metropolis Airport, passing through the Gotham City Airport, sees one of these dispensers dispensing the wrong kind of towel, this might inform his own purchasing decisions.
This leaves an unresolved point, however. In many cases, the "visible quality" is not a quality of the product itself, but of the customer. A classic example would be the story of the young lady who, visiting Europe in the 1950's, was told to get rid of her Ingrid Bergman-style trenchcoat, "because every prostitute in Paris has one." The manufacturers of expensive designer handbags are not concerned about losing sales to the kind of people who buy cheap knock-offs, but they are concerned that their regular customers might not want to buy anything which might cause them to be mistaken for "people like that."
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I have used the EnMotion product and dispensers...
Worse, it will dispense a towel at you as you walk past it, just as if it was intentionally sticking it's scratchy paper tongue out at you.
Grrrrrr....if I only carried a baseball bat with me to the bathroom.....
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soap dispensers
Well, I was unpleasantly surprised to find that the soap just wouldn't pop into the dispenser. Although the two different brands of soap appear to come out of identical bottles (not just the shape, but the numbers on the plastic are identical), they're fitted with different collars that have bits of plastic sticking out so that they fit into the dispenser like a lock and key.
So I broke off the right bit of plastic, and voila, it fit right in. Whew--I was afraid I'd have to spend money on a new dispenser or something.
I was hoping that the Waxie cucumber melon foaming body wash & shampoo would have a different formulation than the Gojo cucumber melon foaming body wash & shampoo, but now I fear that they both buy it from the same manufacturer...
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Consumers Don't Care
Well, there's confusion, and there's giving a shit.
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the real issue
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No No No ..
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Paper
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Tork Towel dispense
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