Procter & Gamble Sues Over Shampoo Bottle Infringement

Procter & Gamble has filed a lawsuit against a California company, claiming that it stole the design for their Herbal Essences shampoo bottle molds.

The lawsuit claims that Blue Cross Laboratories is “distributing look-alike Herbal Essences shampoo and conditioner products under the name Herbal Passion to dollar stores,” says Reuters.

We couldn’t locate a photo of the supposedly infringing shampoo bottles on Blue Cross’ website, but it’s pretty obvious from some of their other products (left) that they’re not above “improving” someone else’s shampoo bottle design. Do these actually fool anyone into thinking they’re buying brand name shampoo?

Blue Cross Laboratories
Procter & Gamble charges shampoo bottles copied [Reuters]

Comments

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  1. phospholipid says:

    why come blue cross can’t have burtiful bottles like herbal essences? WHY COME!?!?

  2. jacknval says:

    Forget trademark infringement, did you see the Holy Land Lotion with Aloe & Myrrh, #122. Complete with Virgin Mary label!

    [www.bc-labs.com]

    Moisturize away your sins!

  3. Curiosity says:

    Probably not copyright, but a trademark or service mark violation (infringing on the trademark = consumers mistake a bottle of Herbal passions for Herbal essences). Note another source of the story [cincinnati.bizjournals.com]
    Though copyright could apply to some aspects of the design.

  4. stinerman says:

    It’s only trademark infringement if they’ve registered the mark with the feds.

    They could sue under common law trademark infringement, but they’d have to demonstrate that the bottle shape is ubiquitous and that people associate the shape with their product.

    Copyright would come into play only if they could convince a judge that the bottle is a sculptural work. Even then, I doubt they registered the design (but maybe did the text) with the copyright office, so statutory damages are out of the question.

    In short, their lawyers will have to earn their pay on this one.

  5. Meg Marco says:

    @curiosity: The Reuters piece seemed to concentrate pretty heavily on the shampoo bottle mold design. Could it be both?

  6. madanthony says:

    I think the “herbal bouquet” bottles are the knockoffs – fourth one down:

    [www.bc-labs.com]

    classy.

  7. nobodygrrl says:

    Having not seen the complaint, my guess is that it’s a design patent infringement action (P&G owns a number of bottle design patents). I would be surprised if they alleged trademark and/or copyright infringement, as such rights are not normally afforded to functional aspects of goods. Herbal Passions vs. Herbal Essenses is something entirely different.

  8. jmschn says:

    oh c’mon…who would be dumb enough to confuse those bottles with herbal essence…geez

  9. Meg Marco says:

    @madanthony: The infringing bottles are labeled “herbal passions.”

  10. Fuzz says:

    I bought a look-alike Panteen conditioner from Superstore once. I totally got tricked because they were right next to the real ones, the bottle looks exactly the same, and the only difference was a subtle name change. The conditioner totally sucked, in case you were wondering. These practices are shaddy and should be stopped.

  11. Nytmare says:

    I don’t see any difference between this and all the store-brand items with copy-cat packaging that are purposely placed adjacent to so many name-brand counterparts. Wonder why store brands get away with it?

  12. brendanm14 says:

    This is the old Herbal Essences bottle….i am surprised they even care. I have seen tons of knockoffs like these.

  13. Parting says:

    The ones you buy in dollar store, they don’t smell nice, they stink. (However, it could make a cheap hand soap.)

    You can’t mistake one for another.

  14. DrGirlfriend says:

    P&G should know that imitation is the sincerest form of flattery. Clearly, Herbal Essences have the best bottles in the biz.

    The ones pictured here look like a knock-off of Dove’s old bottles. These manufacturers seem to stick with copying old packaging.

  15. rickhamilton620 says:

    Hey I found a picture of it-[www.dollaritem.com]

    It does resemble the Herbal Essences bottle shape.

  16. SuperJdynamite says:

    “It’s only trademark infringement if they’ve registered the mark with the feds.”

    This is false. You need not register a trademark to use one and enjoy the legal protections it affords. You can , of course, register a trademark (at which point it’s called a “registered trademark”) which gives you some additional protection in areas where the mark isn’t currently being used. Here’s a page from the USPTO on the subject.

    I assume that the faux bottles copy the “old” versions of bottles so the imitators can claim that the mark was abandoned.

  17. UpsetPanda says:

    @rickhamilton620: Yeah it does! And it has similar graphics too. Someone not looking twice might mistake it for Herbal Essences. Since Herbal Essences (and a lot of other shampoo manufacturers) rely on color and smell to hook people (mostly women) to buy their products, I can see how P&G might have a problem with this – having a product similar in color and shape might be misleading to consumers relying on color to pick the right shampoo when they are simply grabbing their tried and true favorite.

    @chouchou: Have you smelled the Tresseme conditioner? It stinks so much and I didn’t expect that. But it works really well and the smell never lingers.

  18. scoli83 says:

    @nobodygrrl: It is highly unlikely that this is a design patent case… This is most likely a trade dress (specifically product packaging) case, which is a form of trademark. In product packaging cases you do not have to show a secondary meaning. Therefore, this case is probably a bit easier to win than most people on the board have speculated.

    Further, copyright probably doesn’t apply. It most definitely does not apply to the shape of the bottle because the bottle is functional and it is doubtful that the alleged infringer copied the text on the bottle.

  19. Jaysyn was banned for: http://consumerist.com/5032912/the-subprime-meltdown-will-be-nothing-compared-to-the-prime-meltdown#c7042646 says:

    @madanthony:

    Wow. Nearly every single item on that page it a “container” knock-off of another product.

  20. Curiosity says:

    @Meg Marco:

    I was just noting that the stories I saw on this were more trademark oriented, and unlike copyright infringement this is should be a huge concern for consumers since when other companies infringe (a subjective determination) consumers can be fooled into buying a product they either do not want or is substandard. Trademarks are usually monopolies on names in certain fields that if enforced favor consumers b/c they allow consumers to pick and choose.

    Copyright infringement (without trademark infringement) ironically usually favors consumers (if copyright law is too restrictive) since copyright is an artificial monopoly, which allows produces to make money from an expression. Similar to patents, sooner or later it can be used by everyone (ideally). Obviously though copyright infringement is bad if it is so rampant artists, writers, etc. do not want to create work b/c they cannot earn a living selling their ideas (thus no market).

    It could be both depending on what they are claiming they are protecting. It is best to dig up the lawsuit in this case to see what is being claimed b/c ironically in trying to protect its own business P&G is protecting the consumer.

  21. Curiosity says:

    @scoli83:

    Not saying that this is the case, but I know I would try to assert copyright and patent claims in case the trademark/dress claim failed.

    Actually there could be copyright claims depending on the artwork and the expressive design – they probably arn’t the main claims. It is hard to tell unless you have more info – not to get too technical but certain aspects of the bottle can be claimed as protected under copyright despite it being a useful article [www.copyright.gov] .

    Moreover, there can be a patent claim depending on the bottle – see the Folgers and P&G battle over the coffee cans. [www.flex-news-food.com]

    Thus it depends.

  22. toddiot says:

    @rickhamilton620: Now THAT looks the same! I wonder if they have the matching conditioner bottle as well.

  23. nobodygrrl says:

    @scoli83: You win. It’s a trade dress case. They’re going to have a heck of a time showing non-functionality and distinctiveness/secondary meaning…

  24. scoli83 says:

    @curiosity: There could be a potential design patent, but I would bet that the heart of this case is trade dress, not patent.

    There is always room for a copyright room and it sounds like your a lawyers. You know the name of the game, throw everything and see what sticks. However the bottle as a whole is probably not copyrighted, but parts of it may very well be.

    @nobodygrrl:
    Product packaging does not require secondary meaning. See Two Pesos v. Taco Cabana.

    If there is nothing special about the bottle itself it won’t be very difficult to show that it is non-functional. Merely containing a liquid is not sufficient to be considered functional– usually…

    If there is something special about the bottle, they will probably bring a patent claim in addition to whatever else they have.

  25. krunk4ever says:

    It would be nice if Consumerist.com would update the photo with the one that P&G is probably suing for.

    Looking at the other Blue Cross Laboratories shampoo: [www.bc-labs.com], it’s obvious they ARE CREATING LOOK-A-LIKES.

    Head & Shoulders:
    [www.bc-labs.com]
    [www.amazon.com]

    L’Oreal Kids Shampoo:
    [www.bc-labs.com]
    [www.amazon.com]

    The others remind me of Pantene, Dove, Thermasilk, etc.

  26. nobodygrrl says:

    @scoli83: To prove trade dress infringement, you still have to prove that the packaging is (1) inherently distinctive OR (2) has acquired distinctiveness [secondary meaning]. See Wal-Mart v. Samara Bros. Both are tough rows to hoe for packaging designs unless the design is something special. I think that design patent infringement would be the way to go (if P&G owns a design patent), especially since the use seems quite willful.

  27. Curiosity says:

    @scoli83:
    Yes I agree with you – see my point in the second post. However, I was just trying to state that this really shouldn’t be classified under copyright b/c it is not really a consumer issue and trademark/dress (though some people like using the term service mark) is more appropriate.

    Moreover for general clarification, trade dress usually includes the total commercial image of a product but is not product packaging [www.tenonline.org] . Similarly, trademarks identify and distinguish either the goods or services of one manufacturer or seller from goods or services manufactured or sold by others. Also, trademarks indicate the source of the goods or services.

  28. Curiosity says:

    @nobodygrrl: You can still assert trademark infringement irrespective of trade dress depending on what is filed. Though it really depends on the facts of the case doesn’t it?

  29. scoli83 says:

    @nobodygrrl: There are multiple types of trade dress. Wal-Mart v. Samara Bros. applies specifically to product design. Wal-Mart v. Samara was a case involving the design of children’s clothing– part of the product itself.

    In this case, the point of argument is not the product, but the packaging that it is in. Therefore, this is probably a case of product packaging in which case Two Pesos v. Taco Cabana applies. This case was about the design of a restaurant, it’s “packaging” If this is true then you do not need to prove secondary meaning. Further, there is a rebutable presumption that product packaging is inherently distinctive.

  30. nobodygrrl says:

    @scoli83: Were you opposing counsel in my last case? Still mad that I got attorneys’ fees? :)

  31. Grrrrrrr, now with two buns made of bacon. says:

    @krunk4ever: Wow, you ain’t kidding. Granted, the knockoffs usually try to get you halfway there buy looking somewhat like the original, but yes, after comparing the bc-labs bottles and product names with the P&G ones, it’s clear that bc is trying to trick you into thinking you’re buying the name brand instead of their cheap crap.

  32. scoli83 says:

    @nobodygrrl: :)

  33. TangDrinker says:

    Just checked the complaint – it’s trademark/trade dress. docket is 08cv018 sdoh for those who care. There’s also an image in the exhibits of the 2 bottles – and they both look really ugly in the same sort of way.

  34. mariospants says:

    and ten cents bets you they’re full of lead, too.