Shapes As A Trademark: Little Trees Air Fresheners

A distinctive shape can serve as a trademark! I got a call yesterday that made me think of the little tree air fresheners — my aunt always had one of those things hanging in her car, so those bring back childhood memories for me — but more importantly, they make a great case study for shape as a trademark. 

Remember that anything distinctive can serve as a trademark — a color, a word, a phrase, a shape, a sound — so long as it serves to distinguish your goods and services from other people’s goods and services. Today, let’s talk about shape as a trademark. 

I’ve covered this subject before, and discussed Toblerone, and Coke and their uses of distinctive shapes in their packaging. In the case of Toblerone, the product itself is the distinctive shape, and we have the same situation here in the case of the LIttle Trees air fresheners. 

Shape can serve as a trademark when the shape as to the goods is distinctive and non-functional. The Little Trees brand air freshener distinctive shape is capable of serving as a trademark, because the shape itself is non-functional. In other words, the fact that the air freshener is in the shape of a tree is not part of its function; it could be in the shape of anything, really. So they arbitrarily chose the shape of a conifer to be their trademark. They could have chosen any shape, be it realistic or a representation of a real object, to be their trademark. Their brand name is LITTLE TREES, so they chose to use a tree. 

Could another company make a tree in a different shape, such as the shape of an oak tree, and call it something other than LITTLE TREES and have that trademark be allowed? Well, perhaps. I think that such a move would be very likely to result in an Opposition proceeding by Little Tree, and perhaps a lawsuit. 

Little Tree has been using this trademark since 1952, and I think it’s safe to say that the LITTLE TREE word trademark and design trademark are so famous that a consumer would likely be confused when they find a tree-shaped air freshener in the store, even if the word mark associated with the air freshener were different than the LITTLE TREE word mark. The fact that the air freshener is shaped like a tree might cause a reasonable consumer to wonder if the Little Tree people had added a “deciduous” line to their air freshener mix. 

As with all famous trademarks, I recommend that everyone stay far, far away from this mark, for any automobile-related fragrance or home fragrance products. Large companies with well-known brands are very aggressive about protecting their brands from knock-offs, and won’t hesitate to sue to enforce their exclusive rights to their brands. So if your brand idea is to make a parody of a famous mark, or “play off of” a famous mark, you’re flirting with disaster in the form of a trademark infringement lawsuit for getting a little too close to someone else’s trademark.

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Contact Dallas, Texas trademark attorney Angela Langlotz today to get started on a trademark application for your valuable brand.

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