I noticed that Pepsi very clearly used the Coca-Cola logo during their Super Bowl advertisement. How can they do this?
If is allowed, how come other companies do not do this? I admit, I almost never see advertisements these days, but don’t they usually just use some generic non-informative name as a competitor?
Why is Pepsi different?
Was it the full logo? I notice on a lot of commercials they will show only part of the logo. I had assumed that they do this so that they can claim that it is just a similar looking logo; not the actual logo.
I didn’t notice the particular ad you are talking about but this type of thing is an advertising fad that comes and goes. Several years ago there was a long-running “Coke vs. Pepsi” ad campaign that used taste tests. There have been more recent ads, like the one where a Coke delivery truck driver meets a Pepsi delivery truck driver (I don’t remember the details, but trademarked logos from both companies were used). There is nothing unallowed about it, as long as you’re not lying, or misusing a trademark to cause confusion about that product (i.e., selling something and saying it’s Coke when it’s not).
The key points in using something is - will the general public assume that the person/group/logo endorses the advertised product? (Plus the obvious - is what is said about a competitor true?) A properly done comparison / rivalry ad will not give this impression.
If you remember the “Pepsi Challenge” ads, they deliberately went headd to head comparing the two in a blind taste test. Another Coke/Pepsi challenge had the Pepsi delivery guy offfering the Coke driver a drink, then putting the shot on YouTube.
Most products do not name their competitors for a simple reason - why tell the public who your rivals are? Simply mentioning the name is free publicity. Very few products are in the same category as Coke v Pepsi, where there are only the two and they are both so widely known that you are not giving any free publicity -especially if you are number 2. (That’s market position, I mean, not descriptive…)
You trademark your logo so it can be identified and it’s an identity you prefer that is used. There is nothing wrong with showing a label on TV in a show or commercial that is not your property.
For example, even the mighty Superbowl and NFL logo: You could show those logos in an ad that says, “Some people prefer watching the USKC Dog Show over the Superbowl” and there’d be nothing wrong with it. You could have a big dog sit down right on the NFL logo to be cute and it’d be all good.
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See Nominative Use
I’m pretty sure the ONLY concern specific to showing trademarks is that you can’t use somebody else’s trademark to identify your product.
Hmm, I suspect that might be taking things a bit too far.
Companies pay a lot of money to be the official superbowl sports drink, or the official motorcycle manufacturer of octagon corner #3.
I don’t know what law you’d be breaking but I bet you couldn’t just use sporting logos willy-nilly.
So maybe this is just a misunderstanding on my part because ads frequently won’t name their competitor, and TV media frequently blurr out brands on products.
I was under the impression that they couldn’t use a brand without their permission.
Wasn’t there also a commercial a few years back that featured Bud drivers stealing Miller beer (or vice-versa)?
No, you only suspect that because you are convinced the NFL and Super Bowl have their own set of rules. You can’t sell dog food under the guise it is associated with the Super Bowl, because that right is exclusive. You can have Super Bowl party and invite your friends to it, you can talk about the Super Bowl and mention it in news and information pieces, and like any other trademark, it can be used in someone else’s ad. Showing the trademarks in a commercial for a competing product is about as legit as it gets, because you are clearly not associating your product with the Super Bowl.
It is? I’m not so sure; some would argue that just seeing the logo would make people associate your product, regardless what you do with the logo.
But on reflection, I can easily see it being the case that it might be technically legal to use the NFL logo for whatever, but few advertisers would dare to do it. I suspect the NFL would be able to afford a pretty decent legal team…
There are other reasons why you might not want to name your competitor, but it’s not because of trademark law.
And TV shows usually blur logos because they don’t want to promote a product that competes with one of their own sponsors.
I was under the impression that they couldn’t use a brand without their permission.
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No, as others have said, comparative advertising in which you explicitly name or show your competitor’s product is completely legitimate. But, that doesn’t mean that an advertiser necessarily *wants *to do it all the time, for various reason. That’s why advertisements often feature an unnamed “leading brand” or a disguised but slightly recognizable logo or trade dress.
If you’re saying that “my product is better than this other product,” there’s no way you can be implying sponsorship.
It depends on how you’re using it and what your message is. If you are a competing professional football league and your ad basically says “USXFL football rocks much harder than that wimpy NFL football!” then there’s no problem.
However, if you’re not actually in competition with the NFL, then there’s a question of why you are using its trademarks in your commercial. Dominos Pizza, for example, would definitely get in trouble for offering an “NFL Superbowl Pizza Party Deal,” because the definitely implies sponsorship and because the NFL might want to grant exclusive co-branding rights to Papa John’s or Pizza Hut.
I’m not sure about the OP. However, one thing surprises me in my job…
I am one of those people that got irritated at ads that claim they are better than ‘the leading competitor’ or ‘the other brand’. I assume they do this because they are lying and would get sued if they named that brand.
However, as part of my job we test these things…and ones that specifically name another brand rate much lower among consumers than the ones that irritate me above.
Turns out, many consumers do not like aggressive ads like the ones that name a competitor and say they are better. Weird, but a consistent theme across many years. So many of your clients use the generic ‘other leading brand’ not because they are scared of lawsuits…but because people don’t seem to like it.
The blurring out brands parts is often done because, since products paying to have their logo shown is a big part of show/movie revenues (all those macs in movies aren’t there because that’s what the props people picked up at Best Buy, but because Apple pays), products which have not paid get blurred. Other times it’s because showing a label would affect classification: “oh, but we didn’t show any alcohol consumption! It’s not a Jack Daniels bottle, it just happens to be a square bottle with a black label, but you can’t see any Jack logos!”
How often have you seen someone a Coke billboard or can in a movie?
And the same for Pepsi?
Pepsi wouldn’t complain if all that publicity was free - it’s not.
I know someone who created the first major comparative TV ad, all the way back in the 60s IIRC, and it was a men’s deoderant IIRC. It seemed groundbreaking at the time since the ad did not identify the sponsor, simply challenging the viewer to compare the products. Many people at the time felt shocked that such a thing was done, but there was no violation of law, or deceptive use of trademarks. I think many companies avoid this because of the danger of lawsuits. But Coke and Pepsi can certainly afford to defend themselves against junk lawsuits, and have their advertisements cleared through their legal teams.
Two issues -
If you use a logo, ie. for Freds Pizza Superbowl special with the Superbowl logo, then the average person might assume there’s a connection or deal. Just how close you can skirt this issue without a court telling you to pay damages because it looks like you implied a sponsorship deal? Well, many lawyers have made much money arguing the finer points. There’s only one way to find out, but it might cost you a million dollars. Thus, many businesses prefer not to find out the hard way. That does not mean that incidental use is blanket forbidden, but it’s a lot cheaper to err on the side of caution.
The blurs on TV shows are for the same reason as the lack of competitive ads - why give the other side free advertising?
Plus, the problem with competitive ads is that it’s tough to be honest and come out ahead. When they say “we have more leg room than a Honda, more head room than a Toyota, more trunk space than a Kia, etc.”, what they are really saying (to most consumers’ ears) is “the only car with less leg room is the Honda, the only car with less head room is the Toyota, …”. Aspirin makers are good at this - “contains the pain reliever doctors recommend most…” Yeah, right, the all contain the same ingredient, whatever the brand. So unless you really are noticeably better, real competitive ads are a no-win situation.
A major purpose of brand advertising is not to sell you beer or soft drinks or cigarettes, or make you smoke or drink. Its so that when you decide you need to, and you’re standing in front of a wall of products, what name comes to mind so that you grab that one? Even mentioning a competitor’s product in an ad may backfire.
While there are certainly fine points in any area of the law, I’m pretty confident in saying that “Freds Pizza Superbowl special” is not one of those fine points that can only be tested in one way. Any competent trademark lawyer is going to tell you that you can’t do that without permission from the NFL.
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Sec. 1114. - (1) Any person who shall, without the consent of the registrant -
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive.
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Note the operative term “cause confusion”; that’s where a lot of these issues arise.
But the problem is that trademark law put the onus on the holder to challenge any possible trademark infringement. As a result, you get clusters like this and this. In the case of the daycare may have been in violation of 1114(a) because in Florida, there may have been confusion over whether or not the daycare was a Disney licensee or in the case of the performers, there may have been confusion if they were Disney employees. Now I don’t thin any rational person would believe those things, but under US law it doesn’t matter. A company must defend its trademark or it risks losing it and under the functional use doctine, the distinction between legal and illegal use of a trademark is nebulous at best. For example, according to an interpretation of Fleischer Studios v. AVELA, if I get a sweatshirt and make the logo of the Seattle Seahawks on it to show I’m a fan, that is NOT a trademark violation but the Seahaeks would still be in a position to sue me over it.
I take it you missed the Chevy ad where they disparaged Ford (by name) while prominently displaying, and eating, Hostess Twinkies? Ford sought a last-minute cease and desist from NBC, but NBC apparently refused. No word that Hostess was upset.