A brush with familiarity

You be the judge: As seen on the shelves at The Home Depot, an intermingling of brush brands.

There's a battle raging behind the scenes of the paint aisles of the world's largest home improvement retailer. It's here where Wooster brushes and Purdy brushes are competing for the customer's eye.

It's also here where a lawsuit rages of unfair business practices and trade dress infringement. In "Sherwin-Williams Co. vs. The Wooster Brush Co.," Sherwin-Williams claims that its Purdy packaging is being knocked off by Wooster.

Filed in Federal Court in the Northern District of Ohio, the complaint ticks off the areas where Purdy feels its trade dress was infringed: a distinctive shade of golden yellow background; a small partial image of the American flag; and a thick, horizontal, color-coded band across the sleeve covering the bristles.

The complaint alleges: "Upon information and belief, in 2012 Wooster changed the packaging trade dress used for its Wooster Pro brushes sold at Home Depot to closely imitate Sherwin-Williams' Brush Keeper Trade Dress and Color-Code Trade Dress."

"We believe the Sherwin-Williams suit is wholly without merit, and we will vigorously defend our position," said Scott Rutledge, Wooster's VP marketing.

The complaint includes images of Purdy brushes and Wooster brushes side by side on Home Depot's website, as well as images of both brush brands hanging and intermingling on the shelves of Home Depot stores.

The complaint throws in the relatively minor observation that both brands use a copper-colored ferrule. More significant is the accusation of slogan stealing. "If it's worth painting, it's worth a Purdy," was the slogan from 1998 to 2006, according to Sherwin-Williams. The complaint said Wooster uses: "If it's worth painting, it's worth Wooster."

Sherwin-Williams is looking for triple damages, and for all lost profits from the alleged acts of unfair competition.

Home Depot declined to comment on the case.

At New York City-based law firm Lackenbach Siegel, which specializes in intellectual property cases, Howard N. Aronson said trade dress issues are increasingly common in the hard goods space.

Without offering an opinion, he said one consideration in the case will be the connection between the design and the brand.

"Sherwin-Williams pled a good case," he said. "But it will have to prove to the court that its trade dress through years of use has some amount of customer recognition, and that the dress is recognized as a source of origin."

Ultimately, it will be up to the judge.

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