DuetsBlog Collaborations in Creativity & the Law

ORAL B Wireless Floss?

Posted in Advertising, Dilution, False Advertising, Famous Marks

-Wes Anderson, Attorney

I recently purchased a post-holiday present (for myself) – Apple’s AirPods, wireless headphones designed to integrate with Apple’s various products, including the iPhone 7 (which, helpfully, discarded the headphone jack in the name of “courage.”

The earbuds themselves are quite tiny, and likely quite easy to lose, so they come in a case with a flip-up lid, designed to store and charge the earbuds – and many commentators have noticed its similarity to a pack of floss:

Screen Shot 2017-01-13 at 5.57.01 AM

One intrepid Etsy seller certainly agreed – and, in the spirit of theft prevention, “RyanFlosss” offered a sticker for sale on Etsy to disguise the headphones as nothing more than a dental hygiene product.

qnirzqgi30rsv5oylkfh

Proctor & Gamble, owner of rights in the ORAL B trademark, certainly found this design to be quite familiar and issued a takedown notice on Etsy to remove the product.  While it may seem farcical – or downright bully-ish – for a company to attack a sticker designed for electronics, the Lanham Act makes no such distinction. So long as there is the possibility consumers might perceive some affiliation with P&G, or even dilution of the ORAL B or GLIDE trademarks, then these sorts of products can nonetheless fall within the purview of trademark infringement.

The Etsy seller, for his part, took the notice in stride, and ultimately revised his product to look slightly less similar to P&G’s brand of floss. A sticker of your very own can be had for $5 — but, sadly, the listing notes that AirPods are “not included.”