–Dan Kelly, Attorney
BlueCross BlueShield of Minnesota has had a “do” advertising campaign for a few years, which, as the name suggests, focuses on the word “do.” I like the billboard ads that are a part of this campaign, which also features the tag line “Groove your body every day.” It is a pretty comprehensive campaign, covering television, Internet, “street media,” and posters, in addition to the billboards (and, to their credit, all of this and more resides on a website at do-groove.com). All of the graphical ads are thematically similar in terms of content, layout, and design, and the “do” is always depicted in white on a blue background with a little arrow beside it. Here’s an example.
The other billboards and posters are similar, with each having the blue “do” portion, and the other side in different colors with white text.
Lately, I’ve been seeing ads from HealthPartners as part of its “Healthy Should Be Simple” campaign, like this:
(Choose? Ok, I’ll take the chocolate bar!) While there are numerous differences between these ad campaigns (for starters, HealthPartners consistently uses the orange-ish color scheme), the use of a single, lowercase, imperative verb with an arrow in the HealthPartners ads (and it is in most, if not all of them) always makes me think of the BlueCross “do”:
This similarity is probably not close enough to warrant action on the part of either company, and, for that matter, I don’t know who might have superior rights, but this does illustrate a lesson, that the overall look and feel of any ad campaign often has numerous elements, and the smallest element could raise an issue. Here, in my estimation, the issue is not legal, but one of market impression: do either of these companies want viewers to think of the other company when viewing one of these ads? Probably not.
Of course, there are occasions when recalling a competitor’s ads is exactly the objective, but that objective is most often in service to a clever riposte or illustrating the deficiencies of the competitor’s advertised goods or services. If the use of a similar element was intentional here, I may be missing the point.