I’ve been wondering for years whether they must negotiate the rights to use the various company trademarks in dramatic context in the show. I’m afraid the anti-dilution statutes mostly came after I studied trademarks in law school and I’m a little vague on what they forbid in settings other than actual commerce. I doubt it’s product placement. The companies aren’t always portrayed in flattering light, and some are long-gone. In some cases (Chevy) they go head-to-head with the sponsors AMC has lined up for the show (Lincoln, etc.). The only fictional ones seems to be Secor Laxative, Sugarberry Ham, and Fillmore Auto Parts.
The first amendment trumps trademark law. You can mention any trademark you like as long as it’s used correctly (but see below).
In fact, it’s the other way around: shows negotiate a payment from the trademark holder for the mention of their product. If they mention Chevy, there’s a good change Chevy paid a fee for it. But if they want to mention the trademark, Chevy can’t stop them, as long as it is used properly.
And if it’s not used properly (e.g., “I’m going to xerox these pages”); all the trademark holder will do is write a letter saying, “You shouldn’t have done that.” They’d be idiots to do anything more: the letter itself shows they are defending their trademark, and that last thing they want to do is go to court because, what if they lost?
I know I read specifically that Jaguar had no idea they’d be involved in that big Joan storyline until after it had been filmed and not too long before it aired.
Which is hilarious considering the roller coaster ride that plot development put the Jaguar brand through.
Yeah. Jaguar was a great example. They were all, “Sweet, this hip show has focussed on our brand.” and they were all over twitter and social media pointing to the show and then Price tried to kill himself in one and they were all, “Nevermind.”
Haha, that’s right… and it wouldn’t start!
Some of the brands and companies are defunct. They did a campaign for Mohawk Airlines, which was bought out in 1972. And then they had Heinz Beans as a client but I don’t think Heinz even sells beans in the US any more.
That’s too bad, since they had such a great ad jingle. 
And I somehow doubt Winston paid for their mention in the show.
You didn’t mention, though, that Price failed because the car wouldn’t start. Salt meet wound. One of the best moments of the entrie series.
It’s not that simple, or we wouldn’t have ads every January mentioning “The Big Game” or contests in Chicago giving away tickets to see a “North Siders” baseball game. And the anti-dilution statutes are so new that the jurisprudence is still quite unsettled. “Mad Men” is a commercial product making use of the trademarks of others, and it isn’t saved by the exemption for “news reporting and news commentary.” Hyundai recently lost a case where it pretended to show a “Louis Vuitton basketball” in a commercial.
“The Big Game” involves the* commercial use* of a trademark, not the use in fiction. You can use “Super Bowl” in any work of fiction without permission*, but not in advertising. The Hyundai case you cite involves an advertisement.
Advertising is not considered free speech, so the First Amendment doesn’t apply.
Mad Men is not a commercial product. It’s an artistic work (for the purpose of the law), and you do not need to get permission to use a trademark in artistic works. You will get a stern letter from the trademark holder’s lawyers if you use it incorrectly – but no lawyer is going to be stupid enough to do anything more. The letter establishes they have defended their copyright, which is all they need to do.
*Do you really think the NFL gave permission to use their trademarks in Black Sunday?
You seem to be making distinctions—and blurring distinctions—not supported by any case law. Advertising certainly has been considered protected by the First Amendment since Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 US 728 (1976). Nominative fair use cases, like the classic Volkswagen garage case (411 F.2d 350), are premised on a certain amount of necessity and unavoidability. And anti-dilution statutes (which came long after Black Sunday) don’t distinguish commercial television programs from other types of speech. The use of corporate logos to illustrate news stories or blogs about companies is still an unsettled area of the law, for instance.
There’s a lot of gray area in between the Ginger Rogers * case (875 F.2d 994) and theNew Kids on the Block * case (971 F.2d 302).
I may be being whooshed, and I’m sure it’s on wikipedia somewhere, but given that (Frankenheimer I think was the director) used actual footage of some 1970s NFL game, I think the lawyers of both parties had some involved discussion.
I seem to recall the use of the Goodyear Blimb crashing was a big deal and there were some conditions placed on the use of the trademark. Either they blocked out the “Goodyear” at certain key moments, or there were some “discussions.”
Good question for a thread – I’d always thought I was missing something, having been convinced that a fictional work can probably use whatever they want.
Harold and didn’t really make the most flattering portrayal of Jags back in the day, you know.
…Maude? I assume.
Neither did Gumball Rally, which stands as a good example of a car maker pissing off the wrong movie maker for the wrong reasons.
I really thought the Jag suicide attempt was going to be the comic turn ending sad tale - it was just such deadly humor. Was really shocked by what followed.
The phrase people are looking for is “use in commerce.” Regardless of whether Mad Men or an ad is “commercial speech,” the Mad Men use is not a “use in commerce” of the Jaguar trademark.
Furthermore it’s covered by the trademark concept of fair use, which permits (among other things) the appearance of trademarks in creative works of expression.
Although dilution is a relatively new concept, it seems pretty clear to me that in most cases the use of marks in fictional works are not dilutive.
There’s a 2003 decision that kills a dolution claim by Caterpillar over the use of Cat bulldozers by the villains in George of the Jungle 2.
I just picked up 6 cans of these at Walmart just today. Of course they are labeled “New” so, they may be reintroducing them to the market. And, I’ll admit I was influenced by the Mad Men story line… Maybe Heinz is taking advantage to being included in a high profile show.