With the brand new outdoor Target Field located in downtown Minneapolis, the buzz is palpable, and there is certainly more foot and other forms of traffic, especially on the end of town closest to where the Minnesota Twins now play their home games. Given that increased traffic I suppose I shouldn’t be surprised that some businesses will try to capitalize on that increased traffic and compete for the eyeballs of passersby in the vicinity of Twins Territory.

Exhibit A, shown above, is a very large billboard positioned on the roof of First Avenue (known as "Your Downtown Danceteria Since 1970"). It won the attention of my eyeballs.

When this billboard caught my eye, positioned squarely on the path to one of the parking ramps connected by skyway to Target Field, it struck me as, well, not the most "well-articulated ambush marketing campaign," to borrow Susan Perera’s phrase in her recent posts on Ambush Marketing.

It seems to me that it lacks being "well-articulated" because it actually uses the Twins brand name and trademark in the advertisement, by calling out: "Hey Twins Fans! Car Shop With Confidence" positioned above the Cars.com logo and on the background of what appears to simulate a baseball. Can you say, sponsorship?

My assumption, of course, is that if Cars.com actually were paying for the right to be a Twins sponsor, they’d say so, and neither the billboard nor their website give any such indication.

So, what do you think?

Nominative Fair Use of the Twins trademark? Ambush Marketing? Or is this simply another form of questionable brand bait?

  • p mussell

    It may be ambush marketing, but it also strikes me as being more in the vein of classic fair use than nominative fair use. Cars.com is not selling Twins apparel. They are simply referring to a class of consumers (i.e., Twins fans). Given the overall look and feel of the ad, I don’t think an average consumer would mistakenly assume there is any official or implied sponsorship or affiliation. The Twins had to expect this and, in my view, would suffer reputationally if they pursued such uses too aggressively.

  • Steve Baird

    Thanks for sharing your thoughts and perspective, P.
    You make an interesting point about classic v. nominative fair use. To me, it doesn’t neatly fit into a classic fair use scenario because the use of “Twins” is as a brand reference, not the common descriptive meaning of the word “twins”. On the other hand, your argument about the reference to an entire class of consumers is not unreasonable either, it seems to me.
    This strikes me as uncharted territory, unless someone out there can point us to some specific case law guidance that I haven’t seen yet.
    While this might appear to be a rather meaningless and superficial distinctive and discussion to some, it’s not, because you know, p, that there are different elements for each of the two fair use defenses (classic v. nominative), and about five years ago, the U.S. Supreme Court in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., ruled that some level of confusion in the marketplace may have to be tolerated if the affirmative defense of classic fair use is proven. Although the Supreme Court didn’t address whether the same would be true in the case of a nominative fair use defense, my prediction is that, when all is said and done, likelihood of confusion and the nominative fair use defense are mutually exclusive propositions.
    This would be a great trademark law school exam topic.

  • p mussell

    Steve, I agree that it doesn’t fit neatly into either camp of fair use and that likelihood of confusion and the nominative fair use defense are, for the most part, mutually exclusive. Your point about the use of “Twins” as a brand reference is duely noted. However, I still think that in certain contexts (sports teams being one), there is no other plausible way for the advertiser to appeal to that class of consumers and not every such ad should necessitate a formal sponsorship arrangement.

  • Steve Baird

    p, I agree not every ambush ad should necessitate a formal sponsorship arrangement. Some are lawful and some cross the line. Only the ones that are likely to confuse as to sponsorship etc. cross the trademark line, in my view, and I wouldn’t at all be surprised if survey evidence were to show a sufficient number of folks who believe Cars.com is a sponsor based on this billboard, enough to create a problem for Cars.com. Although the billboard doesn’t use the Twins script or logo, I still believe the stronger argument may be that saying “Hey Twins Fans” goes beyond what is necessary to communicate with this class of consumers (important in nominative fair use), especially when the physical context of the ad is in close proximity to Target Field, where the Twins play ball. Seems to me a reasonable expectation, at least under a nominative fair use analysis, that Cars.com should have said something like “Hey Baseball Fans” — that avoids a direct free-ride on the goodwill and emotional ties consumers have to the Twins organization. Whether the Twins organization should care and/or should object is another question.