Royale Flush: the White, Furry Animal Edition

Every week the world goes even further to hell. World leaders actually exchange positions on Twitter about whether Greenland is up for sale; others fiddle while Greenland melts DNA testing for immigrants is proposed, and the Amazon burns.  Racist, anti-immigrant billboards appear in Halifax, and the annual requests are circulated to help make sure kids have school supplies.  I’m “those pencils are over there in the classroom cupboard” years old.

One can easily despair.  Where does one turn in these difficult times?  To kittens and cats, of course. My research (well, Wikipedia) confirms that

images and videos of domestic cats make up some of the most viewed content on the web, particularly image macros in the form of lolcatsThoughtCatalog has described cats as the “unofficial mascot of the Internet”. Cats as human companions “are now sharing not only people’s real life but also their virtual world” as a scientific study points out.

“LOLcats,” aka cat memes, merge pictures of awkward cats with pourly spelled commentary.  Photographer Harry Pointer did pre-internet postcard versions.170px-Harry_Whittier_Frees_-_What's_Delaying_My_Dinner

This one’s from 1905.

As per Wikipedia, “Although it may be considered frivolous, cat-related internet content contributes to how people interact with media and culture.  Some argue that there is a depth and complexity to this seemingly simple content, with a suggestion that the positive psychological effects that pets have on their owners also holds true for cat images viewed online.”

Even a passing glance at the ‘net shows the distracting reassurance of cuteness:  “Cutest Kitten Video Ever,” “Cute Cat Does Battle with its Own Reflection,” and what I call the “genre based” images of cats in boxes, cats dressed up as sushi, and cats dressed up as not-cats (lions, Eeyore, pumpkins, hotdogs, bumblebees).

sushi

This type of research does take a lot of time.

I guess the term “cute cats” has become insultingly synonymous with “low value, popular online activity.”  As Ethan Zuckerman posits in “The Cute Cat Theory of Digital Activism,” because so many  people use the web for surfing porn and cute cat memes, social media platforms remain available tools for activists, because there would be an outcry if Facebook etc. were shut down, denying people access to quality content like this:

funny-cat-memes1

Of course, the mention of felines in legal decisions includes entirely depressing tales of neglect and cruelty.  One Cary Ulmer was charged with cruelty by the BC SPCA.  Sadly, she had 70 feral cats in her garage.  Oddly, the garage also included “one chicken.”  One very aggressive chicken, one imagines (Ulmer v. British Columbia SPCA, 2010 BCCA 98).

The adorable creatures have also incited inter-neighbour strife.  In Corner Brook, downstairs neighbour Mr. Dalley got into a row with upstairs neighbour Ms. Rose, just before she was heading out to karaoke.  Rose went downstairs to borrow some cigarettes.  She alleged that Dalley screamed and yelled at her, grabbed her by the coat, pushed her, and threatened to kill her.  The confrontation resulted in charges against Dalley of assault and uttering a threat.

Apparently, what set Dalley off was the “excessive noise” Rose’s two kittens were making.  When the police arrived later that night, “they could hear Mr. Dalley “yelling about the noise the kittens were making.”  Mr. Dalley’s evidence was to concede that “he was extremely upset and angry.  He indicated that the kittens were very noisy.”

The charge of assault was not proven, but the charge of uttering a threat was.  The Court concluded:   “Mr. Dalley was extremely upset and agitated for no rational reason.  His reaction to Ms. Rose and her kittens was out of proportion to anything that Ms. Rose had done and any possible noise two kittens could make” (R. v. Dalley, 2006 Canlii 54145).

Irving Consumer Products Ltd. v. Cascades Canada, 2017 QCCS 526, features a sort of trademark smackdown between kittens and wabbits.  The Court introduces the case:

Soft furry animals are used to sell bathroom tissue. So is the color blue. Can one furry animal on a predominately blue package be confused with two or three other white furry animals on a predominately blue package? Herein lies in large part the dispute between two major manufacturers of bathroom tissue.

FYI, “toilet tissue” is aka “toilet paper” for the 99%.  Tissue at issue:  Irving’s brand Royale features white Persian kittens, and “each type of bathroom tissue also has a single cat on the packaging, seemingly one of the Royale kittens. This kitten is in a different pose depending on the grade of the tissue.”

Let’s consider the iconography of the kittens’ poses:

 

 

“Original”  kitty refuses eye-contact.  She is a heart-wrenching waif, too sad for one so young, tentatively glancing off-stage, searching for her quickly vanishing hopes and dreams.   Or she exposes the soft underbelly of the kitten image industry, where she will soon be discarded for a younger kitten, like so much 2 ply tissue. Yes, she says, you could only get the 2-ply, but my cute submissiveness makes up for a lack of additional plies.

3 ply kitten at least attempts eye contact but his face tells of a hidden yearning for something more.  3 ply (2).jpgA slight frown of distain, perhaps?  Or is it grim resignation?  Top of the line velour kitten has zero f*cks left to give, and reclines against her royal purple backdrop, holding up her world-weary head with one painfully curled paw. Did someone say “microfrown”? Do I want to be identified as “plush and thick”?velour (3)

 

 

Royale is known to some as the “original catvertiser, changing its initial cat introduced in 1971, to kittens in 1973.

The first commercial featuring those kittens, created by the former F.H. Hayhurst Advertising in Toronto, …shows fluffy kittens playfully batting around a roll of toilet paper on heavy shag carpet – everything is white and looks very soft – while a sultry female voice coos “the soft touch, Royale,” over lounge music in the background.

Oh, the 1970s.  What internet kitten video could the decade have produced had technology advanced more quickly?

Fast forward to 2017, when Irving argues in Court that it is Canada’s “most trusted brand.”  No doubt the assessment was aided by surveys of people who tacitly agreed that “trustworthiness” was something we want in toilet paper.  Irving offered evidence of what appear to be consumer comments: “The cat draws your eye, tend to look at the ones that are looking right at me” … “It’s cute, easy to recognize the brand, the kitten makes it more enjoyable shopping for toilet paper”.  “Iconic kitty.”

Given the necessity of shopping for toilet paper, I guess whatever makes it more enjoyable is of value.  The Court does grant them this:  the blue-eyed kittens “no doubt seem very cute to most consumers.”

Having spent $23M on advertising with this campaign over a decade, of course Irving is concerned about its brand.

And what is Irving defending against?  Rival Cascades was about to “reposition” its brand, and introduced “Fluff.” For Irving, the concern was that Fluff products would be purchased by people confused into thinking they were Kitten products. 

 

 

I cannot independently verify that the above-pictured rabbit butt is Fluff’s butt.

The Court: “Fluff might be described as a cartoon style rabbit with long floppy ears and oversized green eyes which face forward. Like the Royale kittens, the rabbit is white and is portrayed to look soft and cuddly.”

The Court notes that Cascades applied for trademarks of Fluff “lying down, standing and even for its rear end.”  “All of the new packaging features Fluff at the top of the packaging, the green eyes open wide looking out at the consumer. Fluff’s backside is also on the back of the packaging directly behind the face.”

Professor Michael R. Pearce, marketing expert, testified on Irving’s behalf.  He confirmed as only an expert can that the bunny and the kittens were very similar:  both images are “small, cute, furry, cuddly and white” with “enlarged eyes.”

fluffContact (2).jpgThe law’s distinctions between types of shoppers is quite fun. Pearce used the standard of what is confusing to be “anything  that reduces the ability to differentiate products.”  Obvious to him, one small, cute, furry, cuddly, white creature is readily mistaken for another.

This might be similar to the consumer who has been described in similar cases as the “moron in a hurry”.  That’s a direct quote.  One thinks of Homer Simpson hastily buying Christmas presents:  panty hose for Marg, paper for Bart, crayons for Lisa and for Maggie, a dog toy.  The consumer who is utterly oblivious to even blunt differences in detail.  

The consumer whose perspective we need is the “ordinary hurried purchaser.”  These folks are not “completely devoid of intelligence or of normal powers of recollection.”  They are not “totally unaware or uninformed as to what goes on around them.”  These purchasers are said to be “generally running behind schedule and ha[ve] more money to spend than time to pay a lot of attention to details.”

The Court sets the standard:  if this ordinary, casual consumer is confused, then the branding is confusing.  Irving did not succeed.

Generally an average consumer should be able to distinguish between two white furry animals with blue eyes that are clearly kittens and one other white furry animal like creature with oversized green eyes and floppy ears…. (emphasis added)

At the risk of repetition, the use of white furry animals is not unique to the packaging for Irving’s products. It is common practice throughout the bathroom tissue industry, particularly the use of rabbits.

Finally, the Court suggests, “while no evidence has been presented on the issue,” that the purchaser of 3 ply tissue is “more discerning” than the losers who buy 2 ply; hence 2 ply Cascades won’t be confused with 3 ply Royale.  (I think there’s a strong basis for a race- and class-based analysis of what’s going on here with the advertising.  But look!  It’s a kitten!)

And the startling conclusion?    “The final distinguishing factor on the Cascades packaging is Fluff’s rear end on the back of the packaging. Any thought that Fluff might be a kitten should be quickly dispelled with a view of the furry bunny tail.

Basic anatomy, folks.    Even if the consumer buys the bunny and not kitten tissue, the Court figures that, “upon realizing that they have bought the wrong product, consumers who are attached to the kittens are likely to switch back to Royale such that there should be no permanent market loss” (emphases added).

Kitten consumers are loyal (Royale) consumers.  May you never thoughtlessly wipe again.

I’m barbara@darbylegal.ca or www.darbylegal.ca.  Thanks for reading.

 

 

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