Duets Blog : Creativity and the Law: DuetsBlog

Puffing, according to Black's Law Dictionary, is defined as:

The expression of an exagerrated opinion -- as opposed to a factual representation -- with the intent to sell a good or service.

Puffing, as a legal principle, has recently received a fair amount of attention as a result of Domino's new ad campaign. 

Puffing generally exists whereever ambiguous and subjective words (such as good, better, best) are used used to describe goods or services.  Some of you may recall the 3DO gaming system shamelessly touted as The Most Advanced Home Gaming System in the Universe.  This is a classic example of puffery.

Importantly, however, puffing isn't merely a verbal concept.  It also applies to visual depictions.  A rather obvious example would be the animated advertisements showing Red Bull gives you wings.   Obviously, the ordinary consumer isn't going to think that a slightly odd tasting taurine beverage is going to cause wing sprouting. 

This brings us to the million dollar question though:  Where is the line between puffing and deception?  A fair rule of thumb is that it's probably when the advertisement presents something that borders on verifiable fact which a consumer might believe.  For example, implying that your orange juice is processed by squeezing oranges directly into the carton (shame on you Tropicana) could cross the line.  Or, presenting your product as having verifiably superior leak protection when, in reality, it's comparable to the competition (ahem, Glad-lock) is a no-no.  

In the end, staying on the right side of the puffery/deception line can probably be accomplished with the old adage of  "Think before you speak."  

UPDATE:  I forgot to include one of my favorite examples of puffing:  the one-bajillion to one preference. 

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Recently, a new Verizon commercial caught my eye.  Perhaps you've seen it:

This immediately reminded me of a circa 1993 (has it really been that long?) De Beers commercial (seen here).  Apparently, this is one of at least two Verizon commercials intended to "spoof" some of the classic, well-known commercials from our past.  My immediate reaction, to these commercials was to start brainstorming all of the conceivable bases on which Verizon might be liable given the similarity of its commercials to clearly recognizable commercials from the past.  Under the right factual circumstances, I could see all sorts of claims for unfair competition, trademark infringement, copyright infringement, misappropriation, etc. (not saying those facts exist here).    

AdFreak, a blog which I just recently became aware, described these commercials as "parody."  However, I seriously question whether these commercials would be able to successfully meet the legal requirements for a parody fair use defense.  The fair use defense is a relatively difficult defense to establish, particularly where the "parody" is being used for commercial benefit.  

Moreover, parodies are generally understood by the law to be a criticism of something represented by the underlying material, not merely a clever transformative use.  Compare the above Verizon "spoof" to this, where the use is plainly intended to comment on De Beers alleged enabling of the "conflict diamond" trade.  Or compare it to this "vicious" (WARNING: GRAPHIC AND DISTURBING CONTENT) parody of "overwrought De Beers jewelry commercials."  Each of these uses is categorically different from Verizon's use here.  So, I hope Verizon had something else in its bag of tricks besides the "parody" argument before running these commercials.   

Ultimately, the moral is that its important to always recognize the danger in "borrowing" someone else's marketing concept or intellectual property, no matter how limited or transformative the use.  Additionally, its important to recognize the fair use defense is not always the best shield to protect yourself, particularly if you're involved in commercial advertising.

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As an attorney, one of my most oft-committed sins against the art of persuasion is forgetting that brevity is key. Get in, deliver your message, and get out.

In contrast, concise delivery of a message is something that good branding and advertising generally excel at. I say "generally," because as I was sitting at/in/on/around/near Mall of America Field at Hubert H. Humphrey Metrodome watching the Minnesota Vikings de-pants the New York Giants to get the #2 Seed in the NFC playoffs, I began to think of other sponsorship mouthfuls that make me question whether any message really gets transferred to the recipient. Given my football frame of mind, the only thing I could think of was the horrendous rebranding of the Chicago Bears as Bears football presented by Bank One.

But, that also get me thinking about some sponsorship "eyefuls" which often leave me confused. For example, there’s this:

(If you prefer live action…)

This...

And this:

While I can’t claim to be an expert on advertising expenditures, it seems to me that budgets may be better spent trying to distinguish yourself, rather becoming another voice in a sea of noise.

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If you've been paying attention on the trademark litigation front, you may have heard that The North Face recently brought a lawsuit against a freshman at the University of Missouri, Jimmy Winkelman, who has been selling clothing under the name The South Butt.  Aside from the obvious trademark question of whether the consuming public is, as Jimmy's attorney stated, "insightful enough to know the difference between a face and a butt," there are a couple other issues (unrelated to each other) that piqued my curiosity. 

First, it appears that The North Face has included a claim for trademark dilution.  For the uninitiated, trademark dilution is a different claim which, unlike a general claim for infringement, does not require consumer confusion.  Rather, it requires the diminishing of a "famous" mark's ability to serve as an indicator of source through "tarnishing" or "blurring." A classic example of tarnishment is the case of Moseley v. V Secret Catalogue, Inc., where Victoria's Secret sued an individual, named Victor Moseley, who was operating an adult store under the name Victor's Little Secret.  The theory was that even if the consuming public would not be confused by Victor's Little Secret, it damaged Victoria's Secret because it essentially cheapened their trademark.  So too here.  Even if people can tell the difference between a face and a butt, the damage may still exist because The South Face will case people to associate The North Face with a butt.  Notably, successful claims for dilution are rare, frequently because the "famous mark" hurdle is difficult to clear and "blurring" and "tarnishing" are difficult concepts for a court to address.  To me, it's uncertain whether The North Face can meet the "famous" requirement and whether dilution could be shown.  I'd like to see how the dilution claim would play out, but I doubt we will get that chance.

Second, I can see this case turning into an absolute nightmare for The North Face from a public relations standpoint.  Apparently, little Jimmy is a college freshman who started The South Butt to help pay for school.  This has all the makings of a classic David versus Goliath story where the public perception will end up being that The North Face is just a giant greedy corporation that can't take a joke and wants to beat up on a little guy.  (The last I heard, The South Butt's revenue was hovering around $5000.)  While I'm not particularly knowledgeable about The North Face's target demographic, it seems like this wouldn't play well with a lot of them.  This brings us to a teaching point:  While diligence is important in protecting your brand, so is thoughtful contemplation about your enforcement actions.  It's important to weigh the risks of doing nothing (which can sometimes be very substantial), with the risks of engaging in very public litigation with a sympathetic adversary.  Here, I think The North Face could have taken a more thoughtful approach than suing a poor college freshman named Jimmy right in the midst of the holiday shopping season.

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As an intellectual property lawyer, a common thing I notice is the public treatment of the terms copyright, trademark, and patent.  In the legal community, each of these phrases represent distinct rights and doctrines of law.  A trademark is a word or symbol that identifies source, a copyright protects original literary or artistic works, and a patent protects an "invention."  (Go here for more information if your really interested.) 

However, in general usage, people often use these terms interchangeably as shorthand for something unique to an individual.  For example, there's Allen Iverson's "patented cross over dribble" (or carry, if you're a basketball purist) and there's Cameron Diaz's "trademark smile" (which was selected for this post because it was the first Google hit).  It's admittedly more difficult to come up with an example for general usage of copyright, so I'll pass on that for now.  Regardless, the point is that generally the public sees patent, trademark, and copyright as the same thing when they really are not.

Now, although each of these are distinct areas of law, there are circumstances where they do overlap.   One example in particular is where copyrighted characters (i.e. original literary characters) become indicative of a particular source, which brings us to the inspiration for today's post:  Mystique from the X-Men. 

Tragically, I'm not particularly knowledgeable about comic books (who is, right?), but when I see blue skin with green, lizard eyes, I think Marvel Comics and X-Men (Women).  I also think mutant, which means there's only one of her.  So, imagine my surprise when, out of the blue (that's one of Brent Lorentz's trademark bad puns) I saw this movie preview appearing to take place on an entire planet filled with Mystique-like inhabitants.  Except, this movie has nothing to do with Mystique or the X-Men.  Instead, it's an entirely new race of characters from the imagination of filmmaker James Cameron -- the Navi from the movie Avatar.

There are likely too many differences between the characters for there to be either trademark or copyright infringement.  But, this is just one example of a situation where both copyright and trademark need to be considered.  If the Navi were found to be substantially similar to Mystique, there would arguably be a case for copyright infringement.  If the Navi lead to people confusing Marvel Comics as the source of Avatar, rather than James Cameron, there may be a case for trademark infringement.  This is just something to think about when considering how different intellectual property rights may affect your branding.

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Today is Thanksgiving, and that means turkey, stuffing, cranberry sauce, football, family and friends.  It also means that tomorrow is the official start of the Christmas season – although some jumped the gun (“a wag of my finger” to any business who has had their Christmas decorations up and holiday music playing for the last few weeks).  It also marks the annual return of what I believe to be effective nostalgic advertising  -- whether it's the ever-present Coca-Cola Polar Bears (more here, here, here, here), the rash of "Home for the Holidays" commercials, or the idyllic carriage rides (one more). 

Now, the question is, what do these commercials really do?  None of them have much to do with the products being sold, but for whatever reason, those darn polar bears make me want to drink a Coca-Cola (which I do about twice a year).  I think the answer is the mental associations that these types of advertisements create.  To me, branding and trademarks are all about generating positive associations.  We can't help but draw a positive association with each of these particular brands because of positive associations we already have with the images in these commercials.  They make us think of, and almost yearn for, this particular time of year when everyone and everything seems to be better.  There's no more fitting example than the last Coca-Cola commercial above.  When a seal pokes its head above the water, the polar bears give it a Coke, rather than (warning -- Thanksgiving pun coming) gobbling it up for a tasty snack. 

While some people may have a problem with these commercial giants wedging their way into our holidays by tugging on our "ahhhhhhhh" strings, I don't necessarily.  I see these particular advertisements as a polite addition to the merriment of the season.  They're not force-feeding us.  They're simply saying, "We know you're enjoying the holidays, but while you're at it, why not think of us."  This brings me back to those who got a wag of my finger in paragraph one.  I guess I can understand the thought process: people spend more around the holidays; if you bring the holidays sooner, people start spending sooner.  But, when I hear Christmas music in a department store the day after Halloween, it has two effects on me.  First, it gives me a strong negative association with that particular retailer.  And second, it begins to dilute the positive association that I have with the holidays and advertisers generally.  Rather than envisioning the retailers and businesses as polar bears wanting to share a Coke because it's the giving time of year, I see retailers wanting to share a Coke to lure me in and finish off the kill.

The holidays are almost like The Goose That Lays the Golden Egg.  They can provide much needed boost, but I think it needs to be approached cautiously.  The "holiday spirit" isn't something to be created.  Rather, it's something to be harnessed.  Happy Thanksgiving! 

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If you've been paying attention to the trademark front, you've probably heard that Oprah and Mutual of Omaha recently settled a small skirmish over the use of "aha moment."  The skirmish was apparently ignited by Mutual of Omaha's attempt to register "Official Sponsor of the Aha Moment."  According to Oprah, she made the phrase famous when using it on her show to describe "flashes of understanding" she has with the guests on her show.

My first question, directed to Ms. Winfrey:  Are you kidding me?  While I'm no etymologist, I'm willing to bet that "aha moment" originated before Oprah let it slip during one of her shows, which didn't start airing until 1986.  As we all know (or should know), Aha was already pretty popular by no later than 1985.  (FYI - That last hyperlink was tongue-in-cheek.) 

My second, more serious question is directed to both:  How did you value your decision to commit resources to this mark which you are both using in an admittedly descriptive sense?  (For you non-trademark attorneys out there, "descriptive" marks cannot function as trademarks unless and until they acquire something called "secondary meaning," which generally requires five years of exclusive use).    Given that this dispute was relatively short-lived, as far as lawsuits go, I'm guessing both sides felt it better to walk away from this before it got out of hand.

In any event, if I had to pick  a side in this dispute, I'd go with Mutual of Omaha.  When compared to Oprah, their use of "Aha moment" seemed much more like a legitimate branding strategy and much less like a haphazard effort to stockpile words and phrases.  "Official Sponsor of the Aha Moment" is cleverly suggestive of them being there to help when you reach a pivotal point in your life.  They also apparently went on a promotional tour with the phrase.  God forbid I draw the ire of the Oprah machine, but it looks like all she did was lazily tag some interview snippets. 

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Every now and then, I come across branding campaigns which make me ask "What were they thinking?"  Although the question may sound condescending, I often ask it in a literal sense, trying to figure out why advertisers made certain decisions.  

One particular advertising campaign that I can't figure out is the "Land of Beef."

It appears that the goal of this campaign is to show various "beefscapes" which I suppose are intended to make beef more appealing (see other examples here and here).  However, I don't get how they could accomplish this goal.   As another blogger has asked:  "How is that appetizing."  Frankly, I want my steak tender; not rock hard like a canyon wall. 

Another advertisement that I can't quite figure out accosts me on my way to the office every morning.  It's an advertisement for Manny's Steakhouse, which arguably serves some of the finest steaks in Minneapolis (and elsewhere).  The advertisement depicts a giant bull in all its anatomically correct glory with the tag line, "Manny's:  One Helluva Sac Lunch."   (Dan Kelly previously referenced this photo in his "Tasty Humor" post.)  I can see how it might be funny, but again, how is it appetizing.

Now, I'm a big steak fan.  I love red meat.  (Is there any other kind?)  But, these advertisements absolutely do not make me want to eat beef.  In fact, they make me want to steer clear until the image disappears from my mind.  Who wants the last thing going through their mind before taking a bite into a delicious steak to be bull testicles?  Objectively viewing these campaigns, who is the target market and what is the goal?  I can't come up with a satisfactory answer for either. 

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A few years ago, the world was introduced to arguably the creepiest fast food mascot of all time: The King.  For many of us, this introduction came courtesy of a frightening commercial suggesting that we "Wake Up With The King."  Over the following years, TK expanded his popularity.  He went from our bedrooms to our football fields (other examples here and here).  Eventually, TK became less about burgers, and more about celebrity.  He became more than a mascot, inviting (fake) controversy and spawning imitators.  As a matter of fact, he has become immensely popular with 114,000 My Space friends.

So, the moral of the story is that Burger King has done an incredible job of product promotion here and companies should do whatever they can to establish their symbol as a pop-culture icon, right? 

Maybe.  Consider the following:  what if TK eventually becomes such a pop culture icon that he no longer represents Burger King.  Stated differently, what if the public appropriates TK for its own uses such that he can no longer be considered an indicator of source for Burger King's goods and services?  Could we be looking at the first case of trademark regicide, as opposed to trademark genercide?  I would say that we have a ways to go at this point.  Nonetheless, I think it's a realistic possibility given today's viral marketing environment.    

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Luxo AS, a Norwegian light manufacturer and distributor, has sued Disney and Pixar et. al. asserting various trademark-related claims arising from Disney's and Pixar's use of the LUXO trademark.  In an always interesting case of trademark law/branding meets fair use, Luxo has alleged that Disney/Pixar's use of "Luxo Jr." to identify the "hopping lamp," which has been the corporate mascot of Pixar since 1986, has crossed into the realm of forbidden behavior.

Although Pixar has been using the mascot since 1986, according to the complaint, it was only recently that infringing goods or services were being sold under the allegedly infringing mark.  Specifically, Disney/Pixar is now selling a limited edition DVD copy of Up packaged with a working "Luxo Jr." collectible desk lamp.   Additionally, they are using Luxo Jr. to draw in visitors at Disney's Hollywood Studios.

This case raises some interesting trademark related questions: (1) Has Luxo relinquished some of its rights by not previously attempting to stop Pixar's use of the "hopping lamp?"  (2) Why didn't Luxo take action earlier? (3) Absent Disney/Pixar's expansion of its use to selling lamps, would Luxo have had a viable infringement case?

If I had to venture a guess, I would say that Luxo didn't really have a problem with Disney/Pixar's use until it got a little too real with the lamp sales.  Arguably, the animations enhanced the popularity of Luxo's products and lead to increased lamp sales.  Luxo apparently didn't have a problem until Disney/Pixar tried to monetize some of that popularity itself by packaging a lamp with a DVD.

Moreover, the viability of an infringement claim would have likely required an examination of the often cited, yet often elusive "fair use" analysis.    As demonstrated by the Spa'am muppet case, infringement isn't clear cut when someone is using your mark to say something besides "buy my goods." 

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