Rapala, the world’s largest manufacturer of fishing lures has pleasured us with some pretty clever and creative advertisements over the years, a lot of them award-winning ads too. For example, Carmichael Lynch created the above billboard ad that over time gradually “attracted cats” to the billboard featuring a super-sized Rapala minnow fishing lure. Lots of cats, in fact, many more than you can shake a stick at, you might say, if you fancy idioms and don’t happen to be fond of those feline types. Carmichael Lynch notes: “With simplicity and humor, we’ve helped the [Rapala] brand connect with its enthusiast audience and grow to be the undisputed market leader for fishing lures.” This is simply delicious creativity.
More recently, however, the undisputed market leader for fishing lures is now using the brand name of the undisputed market leader for Internet search engines in Rapala billboard advertising, apparently to continue growing Rapala’s fishing lure business. Although there are Twitter tweets and other mentions on the web referring to this new Rapala billboard ad, I haven’t been able to locate an online image yet, so I’ll have to take a picture of the one I have seen myself and post it here when I can. In the meantime, just picture the above billboard minus the cats (and minnow lure) and with this slogan in large prominent black type above the red Rapala logo: “More Hits Than Google“. Is this new Rapala billboard ad one of the award-winning variety?
What does an Internet search engine have to do with a fishing lure anyway? Apparently, quite a lot, at least, in a macro sense. Successful ones from each variety are measured by the number of “hits” they are able to attract. Lures attract fish hits: “One of the greatest moments for any fishermen is when a huge bass ‘hits‘ their top water lure“. A search engine attracts Internet user hits to itself and various other searched-for websites and blogs: Hit means a “connection made to a website over the Internet or another network: Our company’s website gets about 2,000 hits daily.”
In any event, if there were awards given for ads that raise questions of interest to trademark types, then Rapala’s “More Hits Than Google” billboard ad may be in the running for at least a (Dis)Honorable or Honorable(ss) Mention. As a trademark attorney, I am always drawn to and intrigued by ads that use the trademarks of others, especially those far outside the context of comparative advertising, where the justification to do so seems somewhat “fishy,” or at least, more strained. They are particularly interesting to me because they raise so many questions for trademark types to wonder about.
Here are but a few questions to ponder: Why mention Google by name? Why mention any search engine by name? What would be lost by saying instead: “More Hits Than Your Favorite Search Engine?” Was the ad reviewed by legal? Was the ad cleared by legal? Note the difference between the previous two questions? Was Google asked for permission? Did Google grant permission? Is Google’s permission needed? Does this use of the Google brand constitute nominative fair use? Does the ad suggest any sponsorship or endorsement by Google? Is the ad likely to confuse any consumers as to whether there is some sort of connection between Rapala and Google? Does your answer change to either of the prior two questions, knowing that Rapala billboard ads use a Google-like minimalist design having a stark white rectangular background with other minimal content centered in the white rectangle? Is Google aware? Does Google care? Does the ad contain a claim that requires substantiation? Would anyone take it literally? Does it constitute mere puffery? I could keep going, but you get the idea, right?
In case you’re interested, still hungry, and not exhausted by all these unanswered questions, here are a couple of my prior posts discussing the use of another’s trademark in advertising:
- Picking Levi’s Pocket or Nominative Fair Use; and
- Using Another’s Body to Sell Your Products? The Problem of Airbrushing Non-Traditional Trademarks.