B&G, Airofog USA Involved in Trademark Dispute

BROOKSVILLE, Fla. — B&G Equipment Co., on Dec. 16, 2016, filed a complaint in U.S. federal court alleging that certain products sold by Airofog USA of Brooksville, Fla. infringe upon B&G’s registered trademark rights. 

The complaint alleges that Airofog USA is “promoting, selling and offering for sale goods which are confusingly similar imitations of Plaintiff’s trademark goods.” It targets various pest control products sold by Airofog USA, including sprayers, aerosol delivery systems and termite tools. 

Airofog USA was founded by Roy Soderquist, who has been involved in the pest control and landscape industries in various capacities for 30 years. The company entered the U.S pest control market in January 2016, offering a variety of pest control and vector products that are engineered in Germany and manufactured by Airofog Machinery, a Shanghai, China-based manufacturer.

B&G’s attorney, Darius Gambino, said Airofog Machinery has been on B&G’s radar for several years as a company selling “knock off” B&G products. Once its products became available in the U.S. through Airofog USA, Gambino said B&G decided to take legal action. “For us, it’s a battle against a Chinese company that is trying to play off the innovation of an established U.S. pest control company.”

B&G has two registered trademarks on the B&G Sprayer, a product it has been manufactured and sold, in a variety of volumetric sizes, to the pest control industry for 65 years. Trademark No. 3,210,240 is for the following configurations: (1) a cylindrical barrel; (2) circumferential rings extending around the barrel; (3) a slightly conical top member for the barrel; (4) a handle configuration incorporating a tubular gripping portion and a semicircular support member connecting the gripping portion to a pump portion of the barrel; (5) a sprayer wand with an obtusely angled tip portion; and (6) a diagonal mounting pocket for the sprayer wand affixed to the barrel, which holds the sprayer wand generally upright when mounted on the barrel (collectively known as the “Sprayer Trade Dress”) .

The second trademark, no. 3,239,891, covers those same configurations in No. 3,210,240, plus the trademarked B&G logo on the barrel.

Rick Fee, attorney for Airofog USA, said his client’s sprayers do not infringe on the B&G trademarks. “It’s utterly untrue that any of the Airofog sprayers have circumferential rings, a slightly conical top or B&G imprinted on the barrel. The Airofog sprayers don’t have what [B&G] has protection for.”

B&G attorney Gambino acknowledged that the Airofog sprayers have some differences, but if you look at B&G and Airofog sprayers alongside one another “they share more common features than not. You can't just take away one thing or two things and expect that people still won't be confused. That's really what we're talking about here: infringement is confusion.” 

Airofog USA President Roy Soderquist disagrees that Airofog sprayers are causing market confusion. “I never wanted a ‘me-too’ sprayer. I wanted and we have created a sprayer that is different from the tip to the bottom of the can. Not one person has said that our sprayer resembles the B&G sprayer.”

In addition to the sprayer, B&G is claiming that Airofog USA’s AF Aerosol Device (AD) infringes on B&G’s Aerosol Delivery Unit (ADU) and that Airofog USA’s termite control device, the AF Injector, infringes on the B&G TT400.

The most recent development was on Jan. 24 when Airofog USA filed in U.S. District Court a motion to dismiss with prejudice the B&G lawsuit on grounds that it “substantively fails the ‘facial plausibility’ requirement for pleading.”