Native American Arts, Inc. Smells Trouble and Drops Lawsuit Against Car-Freshner Corporation's Indian-themed Air Fresheners

December 6, 2005 – Firm News


Alexandria, Va. – On December 5, 2005, Native American Arts, Inc. and Car-Freshner agreed to dismiss with prejudice a complaint that Native American Arts had filed against E. Davis International, Inc., which had been a wholly owned subsidiary of Car-Freshner Corporation until it was dissolved and merged into the company.

Native American Arts and its attorney Michael Mullen had filed a lawsuit to stop Car-Freshner from selling goods that they alleged falsely suggest that they are Indian produced or an Indian product in violation of The Indian Arts and Crafts Act and The Indian Arts and Crafts Enforcement Act. The suit, filed in March 2004, was based on Car-Freshner’s sale of air fresheners designed as dream catchers and war bonnets under the trademark INDIAN SPIRIT.

Native American Arts went too far by implying that our dream catcher and war bonnet designed air fresheners violated The Indian Arts and Crafts Act, said Jody LaLone, president of Car-Freshner. “I couldn’t believe that we were being sued for trying to pass off air fresheners as being produced by Native Americans and that the Act, which was created for good reason, was being used against our products. Our fight was on the principle: our products are clearly labeled as being manufactured in China and marketed by E. Davis International, Inc. They clearly are not ‘arts and crafts’ products.”

Car-Freshner took over the defense of the lawsuit from its insurance company to ensure that the case was not settled. LaLone hopes that by standing up to Mr. Mullen and Native American Arts, others will realize that simply selling merchandise with an Indian theme does not violate the Indian Arts and Crafts Act.

Native American Arts had collected samples over a number of years to increase its claim for monetary damages, instead of putting Car-Freshner on notice of their potential violation of the Indian Arts and Crafts Act, said Car-Freshner’s trademark counsel, Roberta Bren of Oblon, Spivak, McClelland, Maier & Neustadt in Alexandria, Va. “This made no sense. If Mr. Mullen and his client had been truly interested in avoiding misrepresentation as to the origin of the goods, they would have immediately advised the company as soon as they learned of a problem.”

This follows a previous loss by the group in Native American Arts, Inc. v. The Waldron Corp., --- F.3d ---, 2005 WL 475357 (March 2, 2005). In that case, the Court of Appeals upheld the decision that the defendant did not violate the Indian Arts and Crafts Act and held that a jury is not required to be instructed that an "unqualified use" of the word "Indian" or a particular tribe's name gives rise to a false suggestion that an art or craft item is an "Indian product."

Litigation counsel for Car-Freshner Corporation, Jeffrey Lipe of Williams Montgomery & John in Chicago, said that this was not his firm’s first encounter with Mullen and Native American Arts. Lipe said, “Car-Freshner was determined and ready to prove that there are some very real limits to the Arts and Crafts Act and that it did not apply to Car-Freshner products or packaging.”

Assisting clients for more than 35 years, Oblon, Spivak, McClelland, Maier & Neustadt, P.C., in Alexandria, Va., is one of the largest intellectual property specialty firms in the United States. The firm provides a full range of intellectual property services, including litigation matters in all courts. The firm also continues to have a significant trademark, copyright and patent interference practice.