This billboard ad has appeared in various locations around the Twin Cities for some time now.
Each time I saw it, I wondered whether it would be the last, given how vigilant 3M is in protecting its various trademarks and other intellectual property. This time, I had a camera handy to capture it.
Now it’s time for some questions.
Is there any question that this Accountemps billboard advertisement prominently features a Post-It brand note?
After all, 3M owns a non-traditional single-color trademark and federal trademark registration for the color canary yellow "used over the entire surface" of "stationery notes containing adhesive on one side for attachment to surfaces." In case you’re wondering, at least one dictionary defines "canary yellow" as "a light yellow." Other 3M trademark registrations related to the Post-It brand refer more broadly to "yellow," and are not limited to "canary yellow," here, here, here.
This billboard ad appears to be yet another example of a well-known, if not famous, non-traditional trademark being used in another’s advertising, not for comparison purposes, but as a prop to help sell goods or services totally unrelated to those of the non-traditional trademark owner. Is the use necessary? Is it appropriate? Should it be considered a fair use, if made without permission? Why didn’t Accountemps make the stationery note prop appear in a color that is not trademarked?
Is the use likely to cause confusion, keeping in mind that actionable confusion is not limited solely to confusion about origin or source, but also protects consumers against likely confusion about affiliation, connection, association, sponsorship, or approval?
Is the look of 3M’s Post-It note a famous trademark? If so, it is entitled to dilution protection too. Section 43(c) of the Lanham Act protects against "dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury." If everyone started to depict a Post-It note in their ads would that tend to blur the distinctiveness of 3M’s trademark or strenghten the brand? I’m thinking that trademark types and marketing types might have different takes on this question.
As you may recall, we previously have discussed the implications of using another’s non-traditional trademark in advertising: Levi’s Double Arcuate Design trademark and the shape of a Corvette from the 1960s.
So what do you think, does Accountemps need 3M’s permission for this billboard advertisement?