Between 1961-1999 slightly more than 3,000 toothbrush patents were granted worldwide. One town in China — Hangzhou City — boasts that it has 358 patents on various toothbrush designs, such that virtually every citizen is an inventor of his own particular style of brush. The brands, styles and colors of toothbrushes are endless. One manufacturer markets a toothbrush with two heads which surround the teeth, claiming it cleans teeth more effectively; another sells a toothbrush with a built-in tongue scraper, designed to remove bacteria which build up on the tongue. Another manufacturer, stressing how important it is to keep your toothbrush clean, markets a toothbrush with a hole in the center of the bristlehead to help ensure that food and other detritus is easily rinsed off. Still other manufacturers stress that bristle orientation is the key to maintaining clean teeth, and sell toothbrushes with angled bristles, which attack plaque at different angles to maximize cleaning power. The one thing everyone in the toothbrush industry agrees on is the importance of being able to reach the back molars, the most neglected and difficult-to-reach area of the mouth. One popular remedy — seemingly obvious, but a real breakthrough in toothbrush technology — has been to bend the toothbrush handle at a slight angle, between 19 and 21 degrees, for ease of maneuvering inside the mouth (see, e.g., the Reach toothbrush).
The multiplicity of toothbrush models has, as one might expect, given rise to a number of high profile lawsuits between the significant market players. In 1999, Gillette and its subsidiary Braun, manufacturer of the Oral-B Plaque Remover®, sued Optiva Corporation for making false and misleading advertisements regarding its Sonicare® electric toothbrush. Gillette alleged that the defendant’s advertising misled consumers by falsely claiming that the Sonicare® broke up plaque through the use of sonic waves — such as those that discovered the wreck of the Titanic — rather than merely by virtue of a thorough scrubbing. The jury ultimately hit Optiva for $2.5 million in damages for false comparative advertising, but almost immediately afterwards Optiva and its $175 million-a-year Sonicare® were acquired by Philips for an undisclosed sum. A mere four years later, Philips turned the tables on Gillette and sued it for patent infringement, claiming that the electronic toothbrush technology embedded in the Oral-B® infringed on patents Philips had acquired in 1995 and 2000 and incorporated in the microcircuitry of its flagship product, the Sonicare®.
The other big player in the electronic toothbrush market, Procter & Gamble, hasn’t been shy about protecting its intellectual property interests either. In 2001 it filed and quickly settled a patent infringement suit against the unfortunately-named HoMedics. The suit alleged that HoMedics’ Powerdent toothbrush infringed on P&G’s rights in the Crest® SpinBrush’s patented “Try Me” feature, which allowed consumers to turn on the brush while it was in the package — a feature guaranteed to stimulate in-store interest in the product. Astonishingly enough, in just three short years after its introduction the SpinBrush® became the most popular power brush in America and led the consumer trend of conversion from manual to power brushes. According to historical data, in 2001 nearly six out of ten power brushes purchased by consumers were Crest® SpinBrushes®.
Despite the mechanical toothbrush trend, however, many recidivist toothbrush users have refused to make the switch, and claim that they are perfectly content with the free toothbrush they get from their dentist every six months. Whether they are truly happy, or simply unaware of the grace and power that could be theirs for a mere $6.99 — and which almost (but not quite) guarantees to brighten their smile along with their day — is a story that is yet to be told. Stay tuned for part III, when I report back from Yoknapatawpha County after interviewing local residents about upgrading their toothsticks to something that ends with an ®.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.