6
Apr/06

P&G Complaint Re 'Pearlized' Tampax Trade Dress


tamapxpearl.jpg
Glenn Mitchell, Schwimmer Mitchell’s head of litigation, writes:
Procter and Gamble and its subsidiary Tambrands, manufacturer of TAMPAX tampons, have filed suit in the Eastern District of New York against First Quality Hygienic, Inc., claiming trademark and trade dress infringement of Plaintiff’s federally registered PEARL and PEARL PLASTIC marks and the packaging for TAMPAX PEARL tampons, which feature a smooth tapered plastic applicator (ED: we can email you the complaint).
The complaint itself is a straight-forward complaint, identifying the elements of the trade dress and seeking relief for trade dress infringement, trademark infringement and unfair competition by use of a confusingly similar mark.
The defendant allegedly uses the terms “pearlized” and/or “pearlized plastic” on the packaging for its competing plastic applicator tampon line. Preliminary research indicates that there is somewhat common generic reference to plastic applicator tampons as “pearlized,” and this may be asserted as a defense. I have no specialized knowledge in the industry to know whether this defense would have any legs.
On the trade dress side, however, it appears that the defendant is on shakier ground, as defendant is alleged to use packaging that not only replicates the colors of plaintiff’s packaging (the copy of the complaint that we reviewed was in black and white), and to adorn the packaging with a curved depiction of a string of pearls, which is also featured on plaintiff’s packaging. Even if the term “pearlized” is weak or generic, this packaging element would appear to be distinctive and protectible.
Without making an evaluation of the strength of plaintiff’s case or arguments concerning defendant’s intent, I refer you to the website of First Quality and invite you to compare and contrast the packaging (and marks) of various of its products to well-known brands.
Although, in the interests of decorum, I have avoided making any puns, at the risk of destroying such decorum, I’ll suggest that we revisit the status of the case every four weeks or so.

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