Sunday, November 15, 2009

Reverse confusion claim over highly descriptive mark fails

World Wide Sales, Inc. v. Church & Dwight Co., Inc., 2009 WL 3765881 (N.D. Ill.)

This case caught my eye for a brief moment of insight into the kind of market research large companies tend to have on hand, repurposed for litigation.

World Wide, a small company that made Forever Fresh for the Fridge (a refrigerator deodorizing product) and sold it via infomercials sued Church & Dwight, which makes Arm & Hammer, including Arm & Hammer’s newer Fridge Fresh refrigerator deodorizing product, for infringement—reverse confusion, in particular. Given the highly descriptive nature of the mark—the PTO actually told World Wide to disclaim “fresh” and “fridge”—and the different appearances of the parties’ products, the court had little trouble rejecting the claim.

In running through the factors, the parties disputed the care taken by consumers. World Wide argued that deodorizers are an impulse buy; Church & Dwight puts Fridge Fresh next to conventional baking soda precisely to encourage such “oh, yeah, that looks good” purchases. Church & Dwight, however, argued that baking soda purchases are planned, and cited research “indicating that consumers do not go into the baking aisle of supermarkets unless they are planning to purchase a product,” raising the typical level of care used on low-cost products. The court didn’t agree, concluding that buyers of low-cost refrigerator deodorizers aren’t likely to be all that meticulous in their selection. Given the difference in appearance, though, even a hurried casual consumer wouldn’t be confused.

That baking aisle research intrigues me. I strongly doubt it was conducted for purposes of litigation, and so the questions it asked were likely broader ones. Obviously Church & Dwight would like to get consumers into the baking aisle more regularly, and I wonder what strategies they are pursuing.

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