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How A Potential Lawsuit Can Boost Your Creativity

December 18, 2015

I had an interesting experience recently. A first.

I have an online store on Fine Art America. I also have a few cards for sale on Redbubble. I got an email from Redbubble saying that one of the cards had been removed.

Why? They had received a complaint from someone who claimed to be the “owner or licensee of related intellectual property.” In other words, I had violated someone’s intellectual property rights.

Here’s the card in question. I’m sure you can spot the violation right away.blank vertical space, 32 pixels high
Humorous Christmas card car interior candy cane taped to pine tree air freshener it's Christmas don't forget to decorate your treeblank vertical space, 32 pixels high

No? Take a closer look. Can you see it now?blank vertical space, 32 pixels high
detail image Humorous Christmas card car interior candy cane taped to pine tree air freshener it's Christmas don't forget to decorate your treeblank vertical space, 32 pixels high

The complainant was the Car-Freshener Corporation. They make those little pine-scented, tree-shaped car air fresheners. They claimed I had used something they owned without permission. Here’s how my drawing compares to their actual product.blank vertical space, 32 pixels high
Compare between cartoon pine tree car air freshener and official Car-Freshener Little Trees registered trademark pine-scented air freshenerblank vertical space, 32 pixels high

I will freely admit that the little tree in my drawing is supposed to be an air freshener. I’ve seen many of them hanging from rearview mirrors over the years. But the thought that I might be violating someone’s property rights by drawing a generic likeness never entered my mind.

Redbubble told me I was free to appeal their action, and that “the complainant will have 14 days to bring legal action against you.”BlankVertSpace.4pixelsBlankVertSpace.8pixels

I did some research. According to Wikipedia:BlankVertSpace.4pixels

Car-Freshner fiercely defends its trademark on the tree-shaped air freshener design, and in recent years has filed several lawsuits against makers of lookalike products…

In 2006, they sued Dale Detwiler (owner of the Austin-based Corndog Cards & Novelties) after Detwiler company produced holiday greeting cards that bore a glow-in-the-dark image of a scratch-and-sniff tree-shaped air freshener.BlankVertSpace.4pixelsBlankVertSpace.8pixels

The Detwiler case certainly got my attention, since it involved holiday greeting cards. I did some further research and learned that Detwiler fought Car-Freshener in court… and lost. According to the Austin Chronicle:BlankVertSpace.4pixelsBlankVertSpace.8pixels

[Car-Fresherner Corporation] filed a federal suit against Detwiler and Corndog… in New York. The litigation slogged forward for nearly a year before the two sides reached a settlement…

… Detwiler was, in essence, forced to settle the case before the merits of the suit were ever considered, solely because he did not have enough money to wage a long-distance battle in New York federal court.

… [Car-Freshener Corporation] (required) Detwiler not only to turn over all of his leftover cards, but also to release to the company the names of all customers and retailers who bought the pine tree holiday card, to provide the amount each customer paid and – believe it or not – to pay $100 in damages to the corporation.

… considering that it’s unlikely that anyone would think Detwiler’s card was actually something meant to hang from a rear-view mirror, their [CFC’s] aggressive move against the homegrown businessman seems out of proportion and downright humorless.

“I think that anyone who reads the settlement will realize that they beat the little guy [Detwiler] into submission,” said Justin Welch (Detwiler’s lawyer). “It really was heartbreaking.”BlankVertSpace.4pixelsBlankVertSpace.8pixels

I was tempted to play David to Car-Freshener’s Goliath, but you have to pick your battles. It was time to move on.BlankVertSpace.4pixelsBlankVertSpace.8pixels

I tell clients that I never run out of ideas. They’re always impressed by my humility… 😊

There are lots of things you can hang from a car mirror. I came up with 7 alternatives, and adjusted the captions accordingly. Here they are, along with corresponding detail images. Take a scroll and let me know which one you liked best.

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Humorous Christmas card car interior stocking with toys hanging from rearview mirror don't forget to hang up your stocking deodorizerBlankVertSpace.8pixels

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Humorous Christmas card car interior fish in fishnet stocking air freshener don't forget to hang up a fishnet stockingBlankVertSpace.8pixels

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    *       *       *       *       *       *       *       *       *       *       *       *       *       *       *       *BlankVertSpace.8pixelsblank vertical space, 16 pixels high

Humorous Christmas card car interior little Socrates ornament hanging from rearview mirror don't forget to hang up your SocratesBlankVertSpace.8pixels

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Humorous Christmas card car interior small guided missile big toe hanging from rearview mirror don't forget to hang up some missile-toeBlankVertSpace.8pixels

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Humorous Christmas card car interior fuzzy dice on rearview mirror hung like Christmas stockings filled with presents don't forget to hang up some fuzzy diceBlankVertSpace.8pixels

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Humorous Christmas card car interior nose clothespin air freshener don't forget to decorate your deodorizerBlankVertSpace.8pixels

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Humorous Christmas card car interior with little man hanging from rearview mirror don't forget to hang Tom Dooley famous Kingston Trio songBlankVertSpace.8pixels

blank vertical space, 32 pixels highUnless you’re a certain age, you’re saying to yourself: I know about Christmas stockings and mistletoe, I’ve seen pictures of fuzzy dice, and I think Socrates used to play right field for the Mets– but who the heck is Tom Dooley??

OK, I included that one for my own amusement. Tom Dula was an actual historical figure who was hanged for murder. We owe him a great debt, tho, because he inspired this great song by The Kingston Trio.blank vertical space, 32 pixels high

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Did any of the redesigns make you laugh? Which one did you like best?

Do you have one of those little pine trees hanging from your car mirror?

Do you own a pair of fuzzy dice?? (I’m hoping I get some for Christmas.)

Hope you’ll leave a comment.blank vertical space, 24 pixels high

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Other Posts You Might Enjoy:BlankVertSpace.8pixels

Come To The Stable, It’s Under The Bridge

Put On Your Cowl, It’s Time To Howl– Hallelujah!

Street Musician Plays Christmas Music, Soothes The Savage Sleigh-Beast
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footer for all future blog posts showing picture of blog author Mark Armstrong, along with short bio and contact informationblank vertical space, 16 pixels highblank vertical space, 32 pixels high

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32 Comments leave one →
  1. December 18, 2015 3:31 PM

    Seems like you were wise not to fight this battle. Here is another story of pine tree-shapes that bear a substantial resemblance to those trademarked by Car-Freshener Corp. and Julius Samann Ltd. http://www.law360.com/articles/355388/end-of-the-road-for-getty-in-car-freshener-trademark-row

    I don’t suppose you can use scrooge or a grinch, either…

    Like

    • December 18, 2015 9:31 PM

      Whoa! I’d seen a reference to the Getty case while I was doing my research, and I knew Getty lost, but I hadn’t seen the actual judgement: $100,000… ouch. Kinda makes you wonder if lawsuits are how Car-Freshener really makes its money, and if the air fresheners are just a sideline. I understand the need to protect one’s intellectual property– any artist understands that– but what Car-Freshener did to the novelty card company in Austin seemed brutal and excessive. Left a bad smell, the kind that can’t be masked by a Little Tree.

      Not sure, but I think Scrooge and A Christmas Carol are in the public domain. I’ve had fun with both of them. And I wouldn’t hesitate to include The Grinch in, say, an editorial cartoon. He’s a cultural touchstone, like Scrooge. But putting the Grinch’s likeness on a product and trying to sell it? No, that’s a clear copyright violation. I checked with my staff lawyer (me again), and he agrees with me… : )

      Thanks for the link, your comment, and ongoing support!!

      Like

  2. soul . to . earth permalink
    December 18, 2015 3:50 PM

    IMHO, you did do a great David in response to Car-Freshner’s stinkin’ & toxic approach. I’m all for protecting intellectual property or design but, to threaten legal action for a sketch that actually pays homage to their product is just bully sh-t. Bah, humbug!

    Love the new hang to win options – my favs. (humour-wise) are Socrat(re)es & Misslile-Toe.

    On a happier note, here’s wishing you and your family a very merry Christmas and a wonderful New Year to come! Heartfelt thanks for all the joy and cheer you spread (smooth as margarine!) w/ your wit and superb sketches. “Dam Good Work, Sir LOL – more power to you!”

    Like

    • December 19, 2015 11:38 AM

      Bully sh-t. I’m wiping away tears here, and not just because my Indian filter coffee burned my lips, tongue, and esophagus. My dear Radhika! Your comment is like a powerful elixir! I feel energized, revved, pumped, and slightly intoxicated. Why I haven’t felt like this since I drank a glass of chocolate milk too fast… 😊

      Thanks so much for your trés supportive and mucho witty words. I saw it as a homage, too: an acknowledgement that a product had become a cultural icon. To bring out the hammer in reply shows a lack of emotional intelligence– not to mention obtuseness in these days of social media, when one’s brand is largely shaped by people commenting and sharing online. You have to work pretty hard to squander the natural appeal of cute little trees. Crushing people in court is not the best public relations strategy.

      Your “Socra-trees” made me laugh. Then I was astounded to discover it’s actually a cartoon feature! I’m still giving you credit for the idea, tho. Your brain waves are so powerful, someone else just picked ’em up, that’s all… 🔮📡📻

      A very Merry Christmas to you as well! You and your mom and sister will probably be attending the party at the Ganges Club? I hope so. I’ve reserved a table for you, and instructed the chef to prepare Ragi biscuits, Kerala plum cake, Achappan, lime shortbread, Eggless tutti-frutti cookies, almond cookies, nankhatai, pomegranate vanilla mousse, and other delicacies. I’ll be serving you myself, wearing my best red tuxedo with green pocket handkerchief. Afterwards, we’ll toast each other with a cup of eggless eggnog… 🐔🚫🍻

      Thanks for being you. You are a sustaining presence, with your wit, wisdom, drollery, and good cheer. Well, time to go iron my tuxedo– cheerio! 😊

      Liked by 1 person

      • soul . to . earth permalink
        December 20, 2015 8:42 AM

        Add a turban to your tux and count us in! What a pleasure ‘twould be to reminisce of ye olde times at the Ganges Club once again! And, with such an outstanding menu. Cheerio! 😀

        Like

  3. December 18, 2015 4:57 PM

    Tom Dooley actually made me laugh out loud. Not LOL. Literally, I laughed out loud. My kids wanted to know what made me laugh and they chuckled too (we all know the song well and sing it on road trips, you know, to cheer us up). So Tom Dooley is my favourite of the revisions. As for the air freshener law suit, I think the petitioner is getting coal in their stocking this year.

    Like

    • December 19, 2015 3:24 PM

      Laura! It’s a pleasure to know someone who knows Tom Dooley! I agree– it’s a song that truly lifts one’s spirits. It certainly lifted Tom’s– and, um, left ’em hanging there, y’might say… : (

      Glad you and the gang got a kick out of it. Coal in the stocking sounds appropriate for Scroogy behavior. Let’s hope Santa brings a big lump for each of their company cars! : )

      Liked by 1 person

      • December 19, 2015 7:00 PM

        I couldn’t be bothered singing lullabies to my kids when they were infants so I sang folk songs. As a result, my kids are all well versed in folk songs too.

        Like

  4. December 19, 2015 5:31 AM

    Dear Mark, it would be funny, if it wouldn’t be true!

    Actually the stink-tree-company should be hapy that this little gadget is so common that everybody knows it.
    2012 I had a similar problem and got sued for nothing. Those adhortatory letters seems to be a good business concept! Law is weired in that point?!
    That was an expensive experience, but in the end had learned a lot about my relationships 😉
    My christmas story this year is telling about….

    I hope you’ll find a good solution!

    I love your fish deodorizer because I dislike the chemical smell of stink-trees. Fish fragarance is so natural…

    I wish you a merry christmas – Tutti

    Like

    • December 20, 2015 7:36 PM

      My dear Tutti!! What a pleasure it is to see you here!!– but of course I always say that… : )

      When I read the words “stink-tree-company,” I spit out my coffee, and it travelled over 20 feet!! (over 6 meters) It’s a good thing the window was open. Too bad there was a squirrel going by without a raincoat. He’s pretty mad at me… : )

      You’re right: you’d think the company would be glad that everyone knows its product. Many companies would give a lot to have that “problem”!!

      I know you’re a very talented artist who works in many different mediums. I’m very sorry to hear that you’ve been sued yourself. I had to smile (sadly) when I read your line about it being an expensive experience, but one that taught you a lot about your “relationships.” I think we’ve all had similar experiences… : (

      It’s a good thing I was not drinking coffee when I read “Fish fragrance is so natural…” Ha!! I would have set a new coffee-spitting record for sure!! Tutti, you are one of a kind– please don’t change a thing!!

      Wishing you a very Merry Christmas, dear Tutti, and a new year filled with all good things!! (and no stink-trees) : )

      Liked by 1 person

  5. December 19, 2015 6:38 PM

    Congrats. on your inspirations! I love the fish net stocking one, the clothespin nose air freshener. The last one would be fantastic to approach a firm…

    Like

    • December 21, 2015 12:22 PM

      Hi, Jean! Many thanks for your comment, glad to know which designs you liked the best.

      Your last thought made me laugh, but hey, maybe you’re on to something: a line of Hanged People For Your Rearview Mirror!! All the politicians and celebrities you despise the most! Now you can hang them from your car mirror and experience real satisfaction every time you drive!!

      No, better back off on that idea– modern life is caustic and cutting and vitriolic enough as it is… : (

      Always good to see you, thanks so much for stopping by! : )

      Liked by 1 person

  6. December 20, 2015 6:08 AM

    I was going to mention your name, my dear sir, but am afraid you might sue me for violating intellectual property rights!
    Seriously?
    I mean, SERIOUSLY?!!!!!!
    Putting aside the obvious, haven’t these guys ever heard of artists -of which I have the privilege to be addressing the King- called illustrators / cartoonists?
    Maybe then all those politicians who appear in cartoons every now and then ought to sue the artist. Come to think of it, I can’t count how many times I’ve seen that bitten apple appearing in various occasions. Maybe editors ought to ban the appearance of the bitten apple in Snow White in all publications, in fear Apple might sue them!
    Up until now I had this fondness for that little tree as it reminded me of my childhood.
    That’s gone now thanks to them! Whoosh – there it goes, obliterated from my mind!
    BUT, you have turned this to a great project -as only a master would!
    Thank you, my dear friend, you are a true master / genius and I don’t mind repeating it again and again, Mark Armstrong [you can sue me!] 🙂

    Like

    • December 21, 2015 6:10 PM

      My… Dear… Marina… ⚡️🔥🌟🎉✨🚀💥🚑

      My apologies! I’d’ve responded sooner, but your incredible comment made me fly out the window and rocket up to the moon, where I lay insensible for several days. Finally some moon men found me, fed me some green cheese, and gave me a saucer ride back to earth. What a delightful experience!! 👽

      Your witty and totally outrageous comment made me roar with laughter, even as I puffed up like a bullfrog! I shall be walking on air for months, and I just know I’m going to be pestered by people wanting to know where they can get anti-gravity shoes like that… 😊

      Sue you?? I’m going to send you truckloads of flowers every day!! Yes, flowers– the ultimate air freshener!! I’ll ask the moon men to deliver them, along with some gourmet green cheese… 🌹🌷🌺🌻🌼💐👽

      You’re absolutely right about the Apple logo– it pops up in all sorts of jokes and parodies. And short of someone trying to counterfeit their products, I think Apple is wise enough to view it all as a homage. It makes them look strong and confident, and it’s turned their brand into a cultural icon– which most people view with affection. Your Maybe editors ought to ban the appearance of the bitten apple in Snow White in all publications, in fear Apple might sue them! was a very funny line– I was still laughing about it when the moon men found me! 🍎👽

      You actually remember the Little Tree from your childhood?? Amazing. I didn’t realize the company had that kind of reach. Well, it used to anyway, before it was obliterated from your mind. And since so many of us look to you for enlightenment, I fear Car-Freshener’s future may start smelling a little, er, stale… 😷

      The King… a true master… genius… I’m crying helpless tears here, and making my green cheese sandwich all soggy!! If I could somehow plug your comment into an electric outlet, it would dim every Christmas tree in the world, and then blow every fuse!! I wish I could hang it from my car mirror, but I’d get arrested for driving while intoxicated!! Thank you, dear Marina!! 😍

      Like

      • December 22, 2015 5:33 PM

        All I can say is Hallelujah to the moon people for bringing you back. Life would be unbearable without the King – Master Mark Armstrong! Thank you Moon Men 👽 – I am eternally grateful! 🙏 🙂

        Liked by 1 person

        • December 22, 2015 7:49 PM

          Zahhhhhhhhh-whoooooooooooppppppp!!! 😊🚀🌕

          Friends, that was the sound of the King-Master flying out the window again, en route to the moon and the Green Cheese Restaurant. 🍀🍞😋

          The moon men are doing their Christmas shopping, and they may not find him right away. So he may be away for some time… 🎁🎄👽🔎😴

          His dreams will be haunted by a goddess in a holly-trimmed toga, The Spirit Of Painterly Masterpieces Yet To Come… 👸🏻🌿👗🎨🏆

          Wait… He’s putting up a little sign… It says… Do Not Disturb… 😴😊😴😊😴😊

          Like

        • December 23, 2015 2:44 PM

          I’m sending for those moon men right away!!!!!!!!!!!👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽👽 exactly, I’m sending an army of them!!!! 🙂

          Liked by 1 person

  7. December 20, 2015 9:47 AM

    Gosh. I never knew the car air freshener people were so intense. That’s crazy.

    Like

    • December 20, 2015 3:04 PM

      Hmm… your comment has got me thinking: Perhaps the manufacture of the air fresheners sends powerful pine vapors wafting thru the company. And maybe there’s some mysterious chemical in pine scent that causes paranoia and hyper-aggressiveness. Especially in legal departments. Well, well, it’s just a thought… : )

      Nice to see you, Matthew, and thanks very much for your comment!

      Liked by 1 person

  8. December 20, 2015 10:37 AM

    Wow. Didn’t know they would actually file a lawsuit over such a small thing !
    My favourite would be the Socrates one. 😀
    Nice to see your posts after a long time 🙂

    Like

    • December 21, 2015 9:25 PM

      My dear Vandy! If I knew you were stopping by, I would have rolled out the red carpet! Oh, wait– I don’t have a red carpet. Well, I would have gone out and bought a red doormat anyway. After all, you are a V.I.P. (Vandy Important Person)… : )

      You liked Socrates? Makes sense. He was a learned, well-read chap, much like yourself. I’m sure he would have approved your selection… : )

      Hope you are well and being your usual good influence. Thanks for stopping by and giving me such a nice Christmas surprise!

      Like

  9. Lily permalink
    December 21, 2015 3:17 PM

    Yikes – that seems a little drastic of Car Freshener! If it were me, I’d be completely honoured that you chose to reference something of mine!

    It’s great to see you used it as a creative opportunity though. Missile-Toe is my favourite – I love a good play on words! 🙂

    Like

    • December 22, 2015 4:50 PM

      Hi, Lily! Who needs an air freshener?? You’re always a breath of fresh air! : )

      I agree with your analysis. I certainly wasn’t making fun of the “Little Tree” in any way. Perhaps this is reading too much into it, but I think you could argue that the tree’s presence in the car is a kind of product endorsement. It implies that the driver keeps a tree on the mirror, and that the tree is always there. At Christmas, it’s time to decorate the tree. To view the card as a threat to your brand, rather than a nod to it, seems very odd to me. The word ‘paranoia’ comes to mind…

      You liked Missile-Toe! Awright! Definitely the wackiest pun in the group, I’d say. Let’s hear it for wordplay!

      Great to see you, thanks so much for stopping by, and I wish you a wonderfully Merry Christmas!! : )

      Like

      • Lily permalink
        December 24, 2015 11:43 AM

        I absolutely agree – it is a kind of product endorsement. And also quite a compliment if you think about it. The tree is indeed always there because it’s a popular car accessory. Paranoia indeed…

        Wishing you warm Christmas wishes, Mark! 🙂

        Liked by 1 person

  10. January 12, 2016 11:00 AM

    This sparks my creativity, and my smartassness… Really makes me wanna draw a bunch of car fresheners. Wish some smartass would.

    Like

    • January 13, 2016 4:25 PM

      Ha! I hear you. It does indeed throw off those kinda sparks. I think, long term, Car Freshener is shooting itself in its pine-scented foot. Every time they bring down the hammer, word of their action leaks out online. Social media watchdogs pick up on that kind of behavior, and spread the word. Over time, they’ll acquire a reputation as a humorless bully– if they haven’t already. It’s a shame. They don’t seem to realize that a company no longer has control of its brand. What people say about you online determines your brand.

      Thanks for stopping by, I appreciate your comment!

      Like

  11. January 18, 2016 6:16 PM

    Ah! That Car Freshener company missed a golden opportunity to get some mileage out of your creativity. Short-sighted on their part.

    Like

    • January 20, 2016 12:01 PM

      Ha! They hung me out to dry, but I’m still damp– guess I showed them!! 😄

      Thank you, my dear Judy, for your most benevolent and supportive analysis of the situation!! 😊

      Liked by 1 person

  12. February 12, 2017 3:33 PM

    I love them all….but my fav is the fishnet stocking (although, in my most recent post), I referenced fuzzy dice 🙂 Your sense of humour and talent are ceaselessly delightful and impressive, my friend 🙂 Thanks for sharing 🙂

    Like

    • February 19, 2017 3:57 PM

      My dear Truly!! It’s Christmas morning here in New Hampshire (yes, we always celebrate it on February 19th), and I just emptied my stocking and found your lovely comment– thank you!! I also got an apple, an orange, three walnuts-in-the-shell, 6 lumps of coal, a pair of wax lips, and a travel-size bar of soap that someone stole from the North Pole Motel– but your comment was the best stocking gift of all!! : )

      Liked by 1 person

      • February 19, 2017 4:08 PM

        Well, it’s official….you are the most charming person I’ve ever come across 🙂 Thanks for giving me a huge smile on a day I can really use one…sending you warm thoughts 🙂

        Like

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