October 28, 2011
On left: a bottle of “Oxol” cleaner from a 1929 ad appearing in The Kingston Daily Freeman; on right: an Oxydol box for sale on eBay for $17.90
In the previous post we compared Oxydol’s early package design to Opal’s stunningly similar packaging. Same basic design, but different product categories — so no trademark infringement there.
Oxydol and Oxol, on the other hand, were both cleaning products. Their package design was not confusingly similar, but the manufacturers of these two products were nonetheless pitted against each other in the landmark trademark infringement case of PROCTER & GAMBLE CO. v. J. L. PRESCOTT CO.
In testimony about an ongoing Oxol radio promotion, Procter & Gamble set out to prove that Oxol had deliberately chosen a “doll” as a free product premium, in order for its “Oxol doll” to be mistaken for “Oxydol” and “sought to profit by the confusion that would result.”
“When you buy a bottle of Oxol, take the label off and send it to the Oxol trio in care of this Station, or address your letter to the J. L. Prescott Company, Passaic, New Jersey. … In return, they will send you the gaily colored "Oxol" rag doll that children love. … And don’t forget to send in an Oxol label for one of those little Oxol Rag Dolls.” The substance of this broadcast was repeated many times. Upon several occasions radio announcers referred directly to the “Oxol doll”. Instructions for completing the “Oxol doll” were sent to all who requested the doll from the Prescott Company.
It is obvious that when the tongue pronounces the words “Oxol doll”, or when the mind operates to put these two words together, a connection in thought between Procter & Gamble’s product and Prescott’s product is inescapable. Such a connection must have occurred to the Prescott Company. Why then was such advertising made use of? The answer is obvious. Ground for mistake in the public mind as to Oxydol and Oxol was well laid and the resulting confusion may not be described as a coincidence.
Confusion as to which company was offering the doll in return for the label immediately came to pass and this was admitted by one of Prescott’s officers. Many housewives sent Oxydol labels to Procter & Gamble and demanded the Oxol doll. An examination of the letters in evidence seems to indicate that the persons writing them were ordinary members of the purchasing public. One housewife wrote, “Am sending the clip off of the Oxydol box. Would you please send us one of your rag dolls…”. Another wrote, “Enclosed is a clipping from Oxydol. Kindly send me a rag doll, as promised over Radio.”
PROCTER & GAMBLE CO. v. J. L. PRESCOTT CO., 1931
Assuming that the correct product label was sent, what the Oxol customer ultimately received via return mail was this:
Above: the “Oxol Doll” and the envelope that it came in (via: eBay)
Looks more like a paper doll than the “rag doll” they advertised, but “truth in advertising” is perhaps not so stringent when it comes to free promotional items.
(See also: Packaging and Consumer Confusion)
Beach Packaging Design