Finally, here is a photo of Rapala’s "More Hits Than Google" billboard ad discussed previously in my Monday post entitled: "Rapala Fishing Lures: More Hits Than Google? Or, More Cats Than You Can Shake a Stick At? " Sorry for the delay folks.
Anyone notice the exceedingly small print located in the lower right corner of the billboard ad?
OK, leaving your microscopes at the lab, three guesses what it reads:
How about, "If you’re close enough to read these words, then you must be part of the work crew installing this sign, so please be sure to secure the corners to prevent the wind from turning the sign into a sailboat?" Cute, nope.
What about "Wow, you climbed all the way up the ladder just to read this microscopic print, you’re so dedicated, or perhaps just a lawyer obsessed with very fine print?" Yes, but no.
Does it say, "Just say ‘no’ to Graffiti, or pay $500 fine?" Good idea, but again, no.
Drum roll, please, it reads: "Google™ is a registered trademark of Google Inc."
How do I know what it reads? Actually, it was an adventure. This sign is positioned to be visible to drivers and passengers heading West on Interstate 394 leaving Minneapolis, so I exited the Interstate and pulled on to the frontage road running parallel to the Interstate, then I parked in a business parking lot nearest the sign, then I got out of my car and walked toward the sign until I was probably 40 feet away to read it, and I was probably more than a couple hundred feet from the edge of the Interstate at that point. In case you’re wondering, I still have 20/20 vision with the help of my glasses, and yes, I was wearing them.
Perhaps the print is so small because it only says what everyone already knows: Google owns the Google trademark. But, if Rapala knows that Google is a federally registered trademark, why use the ™ instead of the registration symbol: ®?
Also, anyone notice the small ™ superscript on the shoulder of the "e" in the "More hits than Google™" tagline or slogan? Is that there to indicate Rapala knows that Google is a trademark, to those who don’t take the time to climb the billboard ladder? Or is it there to indicate that Rapala is claiming trademark rights in the slogan or tagline: More hits than Google.™? Does Rapala really think it can own a slogan or tagline that contains the famous Google® mark, perhaps to prevent Louisville Slugger or Country Music legend George Strait from adopting the very same tagline or slogan to tout the "hits" each has achieved with their own products and services?
If the small print is intended as a legal disclaimer, to help avoid liability, good luck. First of all, some courts have held that disclaimers often create more confusion than they are intended to lessen. Second, I can’t imagine any court giving credence to a "disclaimer" that is not even legible. Third, the fact that the "disclaimer" doesn’t say, "Used with Permission" or "Used Under License," seems to confirm that this use is not authorized by Google. If so and to be somewhat effective, shouldn’t the disclaimer say that no permission to use is required because Rapala believes it constitutes fair use?
I’m simply fascinated by the fair use analysis that I assume Rapala considered before running this ad. So, more later on the "fair use" possibilities, stay tuned.