RACHEL MARTIN, HOST:
I don't know how you feel about those in-car air fresheners you often see hanging from rearview mirrors. Whether or not you think they smell good, they certainly sell well, which is why two rival air freshener companies went to court in New York this past week fighting over trademark infringement. Both Car-Freshner Corporation of Watertown, N.Y., and Exotica Fresheners of Holland, Ohio make these odorous trees. The trees themselves look pretty different. Car-Freshner's trees are pine trees; Exotica's are palms. But it's the way they're branded and packaged that's the problem. Joining me now to get to the bottom of this scented tree business is Andy Newman. He's been covering the case for The New York Times. Welcome to the show, Andy.
ANDY NEWMAN: Thank you, Rachel.
MARTIN: What exactly is the dispute here?
NEWMAN: So our two combatants here are the people who make Little Trees - very ubiquitous air freshener - and the people who make Exotica air fresheners. The people who make Exotica air fresheners changed their packaging a couple of years ago in a way that makes it look a lot like the packaging of Little Trees air fresheners, not the tree-shaped freshener itself, but the little kind of card that the air freshener hangs from in the display rack at your convenience store or gas station.
MARTIN: And that's an infringement - just changing the packaging, even if it looks similar?
NEWMAN: In trademark law there, there is something called a product's trade dress, which is the entire look of the product. And if you make your product look like someone else's product, you can be found liable for infringement and have to change your product.
MARTIN: Who knew there was such a rivalry in the cutthroat business of air fresheners?
NEWMAN: I didn't.
MARTIN: I mean, I have to say, I grew up with the Little Tree pine smell. I can conjure up what that smells like. What does the classic Exotica palm tree sound like - smell like?
NEWMAN: I believe that the fragrances are fairly standardized throughout the car air freshener industry. I do not have any knowledge, nor am I a smell scientist.
MARTIN: (Laughter).
NEWMAN: You know, one of the things that's most confusing about this is that Exotica sells a pine-scented coconut tree.
MARTIN: (Laughter).
NEWMAN: It smells a lot like Little Trees' pine-scented pine tree. Exotica also sells, of course, a coconut-scented coconut tree. And Little Trees sells a coconut-scented pine tree.
MARTIN: No.
NEWMAN: And they smell more or less identical.
MARTIN: (Laughter) And we should establish here, is one product better-selling than the other? I mean, would it make sense that the Exotica palm trees would try to look like the Car-Freshner Corporation pine trees?
NEWMAN: Yes, it would make extreme sense. Little Trees, you see them in movies. You see them hanging from the mirror of practically every cab in New York City. They're a cultural icon. The company that makes Little Trees said that they sell about $100 million a year...
MARTIN: Wow.
NEWMAN: Worldwide. They sell, I believe the figure was 200 million Little Trees a year. Exotica, a very small company, seven million in worldwide sales. They said they only sold about $110,000 worth of Little Trees in this country.
MARTIN: So what happened in court this past week? Did it get resolved?
NEWMAN: Yes, it got resolved. It was a relatively brief trial. The jury deliberated for all of about half a day and returned a verdict that Exotica had indeed infringed on Little Trees' trademark. And they are going to now have to change the design of their packaging and will be made to pay $52,000 in damages to Little Trees.
MARTIN: Andy Newman has been covering this case for The New York Times. Andy, thanks so much.
NEWMAN: Thank you, Rachel. Transcript provided by NPR, Copyright NPR.
