-Martha Engel, Attorney
One of the blessings of homeownership is the surprise that accompanies a major appliance breakdown. I had the pleasure of experiencing one of these events over Labor Day weekend when my dryer decided it was done working. Labor Day is one of the weekends you want to have it happen because there are plenty of sales. I went to one of the local box stores to figure out which dryer worked best for me, and also look at some washers (mine currently is predisposed to ripping holes into fabrics). As I perused my options (the most critical of which was whether, at my short stature, I could reach anything within the washer or dryer), I came across this Maytag washer:
Three trays, one for “softener”, one for “detergent”, and one on the right for…”oxi.” Oxi? I immediately thought “oh that must be for Oxi Clean” and no, not some white powdery drug. In either event, how can you not think of this guy (and one of the greatest South Park episodes)?
But…maybe it’s not for Oxi Clean. There are a number of trademark registrations involving laundry detergent that include “OXI,” none of which disclaim OXI as being descriptive. For example:
- CLOROX 2 OXI MAX, owned by The Clorox Company
- OXI COMPLETE, owned by The Sun Products Corporation
- OXI CLEAN, owned by Church & Dwight Co., Inc.
Even the product labels seem to encourage consumers to assume that the products are infused with Oxi Clean.
The stylization of the lettering on each looks very similar, lending credence to the concept that there is some infusion with the Oxi Clean product or its formatives. But compare these with Arm & Hammer:
If the dispenser on the Maytag washer is intended for Oxi Clean detergent and was a permitted, licensed use, it would be highly desirable for the dispenser to show the OXI CLEAN mark in full. But is it for that, or is it not? The “detergent” portion of the dispenser says “liquid only”, so can you put Oxi Clean powder in the “oxi” dispenser? That seems unclear. There was no clear connection to the Billy Mays brand nor were there any clear instructions on the lid of the washer on how to use “OXI” as there was for “detergent.”
There seems to be some unapparent history here regarding the use of “OXI” but brands should beware of permitting uses of a mark without control – or allowing it to be truncated on product packaging by not acting against such uses – in ways that may ultimately dilute the brand.