Getty Images maintains a number of images in its stock photo inventory that include a tree-shaped air freshener, like the one above. 

The CAR FRESHNER Corporation owns a bunch of trademarks consisting of the product configuration of a tree-shaped air freshener for use with a variety of products, including the ubiquitous air freshener product in the Getty image.

The CAR FRESHENER folks sued Getty for, among other things, trademark infringement.

In early October 2011, a federal district court judge denied Getty’s motion to dismiss the trademark infringement claim, finding, among other things, that,

“after reviewing the images on Defendants’ website containing the Tree Marks, the Court finds plausible the allegation that a purchaser and/or user of Defendants’ images could be confused as to the source of origin of the images, believing incorrectly that ‘they originate from, are sponsored by, are approved by, or in someway are affiliated with Plaintiffs.’”

Something is rotten in the U.S. trademark scheme, and it’s exposed by a result like this. While this is a motion to dismiss rather than a summary judgment motion, a threshold question nevertheless goes unasked and unanswered – whether Getty’s use of the tree-shaped product in the image is a “trademark use in commerce,” which should be a predicate to a claim of trademark infringement. Here, the product being sold is the photo, not the already-purchased air freshener in the photo.

Watch out when taking the pic of your family on vacation. If you include your air freshener, you can get sued. Ludicrous? Yes, but this decision says it can happen. What next, Disney suing you for a photo of your family in front of a theme park?

For a link to the decision, click here.