–Dan Kelly, Attorney
Well, trademark types would do well to become familiar with SongLyrics.com, a searchable website that can be used to discover which songs contain brand or trademark references of interest. Why might they be of interest? Could be helpful evidence to show unsolicited media attention (assuming it isn’t paid placement) in building a showing of trademark acquired distinctiveness. Whether paid for or not, the brand mentions could be helpful in establishing trademark strength or perhaps even fame. There might even be value in helping build a case of acquired distinctiveness for a non-traditional mark, like a single color. The examples that come to mind here are a few country music references to green tractors, and presumably John Deere, without actually saying so (Jason Aldeen’s “Big Green Tractor” and Jason Michael Carroll’s “the tractor is green” reference in “Where I’m From“).
I fully recognize some say the country music of today is not “real” country music.
Although product placement has been around for decades, the application in the music business appears to be more recent. A few years ago Business Week wrote about paid brand placements in Hip Hop music, and about a year ago, Wired reported on the practice of “brand dropping” (apparently a phrase coined by The Kluger Agency, an entertainment advertising firm), basically brand owners paying for placement of brand names in music lyrics. It is unclear how many lyrical brand references are actually paid for by the brand owner. Visual product placements apparently also occur in music videos, according to Product Placement News, and apparently are not uncommon.