How A Potential Lawsuit Can Boost Your Creativity

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.

No? Take a closer look. Can you see it now?

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.

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.”

I did some research. According to Wikipedia:

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.

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:

[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.”

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

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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Unless 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.

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.

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