06-02-2017, 05:55 PM
#1
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I guess Dr. Squatch thinks you all are confused as to which company is selling which soap. Except I'm still confused as to why their customers are confused...


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 06-02-2017, 06:11 PM
#2
  • MaxP
  • Senior Member
  • Madison, WI
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IMHO Dr Squatch is off target besides being unheard of

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 06-02-2017, 06:11 PM
#3
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Mucha do about nothing? ?

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 06-02-2017, 06:21 PM
#4
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I don't get it. Even in the broadest sense of 'trade dress' under the Lanham Act (and there have been some ridiculous decisions) would a customer seriously confuse these two products? 

I wonder if it could be argued that the little hole in the box functions to assist in getting the soap out of the box and therefore constitutes 'functional' packaging and be an affirmative defense. 

They'll probably claim the white band at the bottom and similar font are elements that constitute infringement of 'trade dress'. It's one of the most subjective areas of IP law-would a jury or judge look at these two products and conclude that the average consumer would confuse them?

Here's a very well-known example of a trade dress infringement that Reynolds won. IMO, these are much closer to each other than the two shampoo bars above.

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 06-02-2017, 06:54 PM
#5
  • eengler
  • Administrator
  • South Dakota, USA
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I would certainly not purchase squat from Dr. Squatch by mistake or on purpose. Silly.

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 06-02-2017, 07:21 PM
#6
  • bullgoose
  • The Enabler
  • Redondo Beach, California, U.S.A
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(06-02-2017, 06:54 PM)eengler Wrote: I would certainly not purchase squat from Dr. Squatch by mistake or on purpose. Silly.

Biggrin

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 06-02-2017, 07:23 PM
#7
  • bullgoose
  • The Enabler
  • Redondo Beach, California, U.S.A
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I think you need to retain the firm Dewey, Cheatem and Howe to fight this. Tongue

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 06-02-2017, 07:44 PM
#8
  • Devilanche
  • Active Member
  • Singapore (CONUS post address)
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Which part is the infringement?

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 06-02-2017, 08:04 PM
#9
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(06-02-2017, 07:44 PM)Devilanche Wrote: Which part is the infringement?

That you as the customer is confused by the similarities.

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 06-02-2017, 08:06 PM
#10
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Interesting. So are you going to fight it?

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 06-02-2017, 08:13 PM
#11
  • Devilanche
  • Active Member
  • Singapore (CONUS post address)
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(06-02-2017, 08:04 PM)WetShavingProducts Wrote:
(06-02-2017, 07:44 PM)Devilanche Wrote: Which part is the infringement?

That you as the customer is confused by the similarities.
In just confused

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 06-02-2017, 08:15 PM
#12
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(06-02-2017, 06:21 PM)Michael P Wrote: I don't get it. Even in the broadest sense of 'trade dress' under the Lanham Act (and there have been some ridiculous decisions) would a customer seriously confuse these two products? 

I wonder if it could be argued that the little hole in the box functions to assist in getting the soap out of the box and therefore constitutes 'functional' packaging and be an affirmative defense. 

They'll probably claim the white band at the bottom and similar font are elements that constitute infringement of 'trade dress'. It's one of the most subjective areas of IP law-would a jury or judge look at these two products and conclude that the average consumer would confuse them?

Here's a very well-known example of a trade dress infringement that Reynolds won. IMO, these are much closer to each other than the two shampoo bars above.

Laywer hat on....

I don't get it either. They're basically saying that they're customer is so stupid that the hole & the name band are enough to confuse them as to which soap maker is which.

The little hole is functional, but it's size, shape & placement is not. But that doesn't mean you can't have it in the upper right hand corner. But combined with 20 other similar elements, it starts to get closer to being confusingly similar.

Maybe, but that's actually the only 100% functional part of the design. I hate that band. It's actually a cop out so I don't have to order 2,000 boxes of barbershop, 2,000 boxes of tobacco, etc etc. I can just order one box and print off individual bands.

The font maybe, but that's really pushing it. The layout isn't the same, no other element is similar. 

The only other similar graphic design element is the borders, but that just smacks of "duh". It's so ubiquitous, you cannot possibly base an infringement case claiming you both have borders.

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 06-02-2017, 08:16 PM
#13
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(06-02-2017, 08:06 PM)Blackland Razors Wrote: Interesting. So are you going to fight it?

Don't have a choice. I'm not going to roll over just because they say so. Are you confused?

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 06-02-2017, 08:22 PM
#14
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(06-02-2017, 08:16 PM)WetShavingProducts Wrote:
(06-02-2017, 08:06 PM)Blackland Razors Wrote: Interesting. So are you going to fight it?

Don't have a choice. I'm not going to roll over just because they say so. Are you confused?

No, but I'm not sure that matters, unfortunately. I'm rooting for you! I hope you'll keep us updated.

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 06-02-2017, 08:29 PM
#15
  • evnpar
  • Emeritus
  • Portland, Oregon
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Next they should go after Dan at Dapper Dragon, or perhaps it should be the other way around?

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 06-02-2017, 08:29 PM
#16
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(06-02-2017, 08:22 PM)Blackland Razors Wrote:
(06-02-2017, 08:16 PM)WetShavingProducts Wrote:
(06-02-2017, 08:06 PM)Blackland Razors Wrote: Interesting. So are you going to fight it?

Don't have a choice. I'm not going to roll over just because they say so. Are you confused?

No, but I'm not sure that matters, unfortunately. I'm rooting for you! I hope you'll keep us updated.

It actually does matter because they need to prove that people are actually confused based on the similarities or that I'm actively trying to leech off their non-existent brand recognition by copying their color scheme and other design elements.

I'm hoping they'll see that this was a stupid use of resources and it backfired and just drop it. Otherwise I suppose I'll have more fun letters to share showing how people they've polled are "confused." And a summons....

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 06-02-2017, 08:30 PM
#17
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(06-02-2017, 08:29 PM)evnpar Wrote: Next they should go after Dan at Dapper Dragon, or perhaps it should be the other way around?

OMG! Those are uncannily similar!

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 06-02-2017, 08:31 PM
#18
  • bullgoose
  • The Enabler
  • Redondo Beach, California, U.S.A
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(06-02-2017, 08:29 PM)WetShavingProducts Wrote:
(06-02-2017, 08:22 PM)Blackland Razors Wrote:
(06-02-2017, 08:16 PM)WetShavingProducts Wrote: Don't have a choice. I'm not going to roll over just because they say so. Are you confused?

No, but I'm not sure that matters, unfortunately. I'm rooting for you! I hope you'll keep us updated.

It actually does matter because they need to prove that people are actually confused based on the similarities or that I'm actively trying to leech off their non-existent brand recognition by copying their color scheme and other design elements.

I'm hoping they'll see that this was a stupid use of resources and it backfired and just drop it. Otherwise I suppose I'll have more fun letters to share showing how people they've polled are "confused." And a summons....

Where is the good doctor located? How does that even work?

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 06-02-2017, 09:16 PM
#19
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You sue the defendant in their state. It's the easiest way to ensure jurisdiction. You file a complaint with the court, the court stamps it, then you have a process server serve it on the defendant, and then the defendant answers or files a preliminary response, and then the lawyers have at it. Whole process can take years if it goes to trial.

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 06-02-2017, 09:49 PM
#20
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Quote:I wonder if it could be argued that the little hole in the box functions to assist in getting the soap out of the box and therefore constitutes 'functional' packaging and be an affirmative defense.

The C&D-letter however is talking about NON-functional packaging. This apart from the fact of course that until reading this thread I'd never heard of Dr Squatch yet have seen numerous soapproducts by different brands with a hole in their packaging. These did not confuse me.
Just about all Japanese CD's come with a band around the packaging, yet despite not being able to read Japanese I've never erred and bought a CD by the wrong performer.
As far as I'm concerned the two soapproducts referenced in the letter look utterly distinctive even in black and white.

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