Brand signals have been described as meaning vessels before, and vessels of trust too. Does that make a branded product package, container, or configuration a vessel within vessel?

The tin cans below that have been recycled and transformed (as seen in the image I captured at the Minnesota State Fair), were most likely once brand vessels within vessels, but now, there is no trace left to the variety of brands that once adorned these physical vessels:

RecycledTinCans

No one of sane mind would question this vendor’s legal right to strip all brand recognition from these physical vessels and give them new life as creative hanging planters.

And, it also seems unlikely anyone would question Coca-Cola’s legal right to stop a vendor who refills a branded Coke bottle with something other than Coke, passing it off as genuine Coke.

But, the recognition of truth at these two extremes, brings me back to my post that rode the holiday weekend, questioning the level of control a brand owner has in controlling its branded packaging and containers downstream:

FireballCandle

RollingRockNightLight

What do you think, are the branded candles and nightlights closer to the Coke example than the tin can example? I think very much so, notwithstanding the reference on Candles by Brandles website to “recycled bottles.

What do you think, where do you draw the line of where the brand owner loses control, if ever?

Does your answer to the question hinge on the difficulty the brand owner has created in another removing all traces of the brand from the container, i.e., removing a paper label from a tin can, or grinding a glass bottle to remove the Coca-Cola logo?

Actually, the Coca-Cola bottle is a bad example, or perhaps a great example to illustrate another point, the contour of the Coke bottle, is a trademark itself, and it cannot be ground out or removed without destroying the bottle.

  • James Mahoney

    In questions like this one, I often think of the ACLU. They frequently tackle issues on the far fringe, mainly because if you don’t, the fringe tends to creep farther from the center. If it does, then what formerly was on the fringe becomes part of the norm, and possibly even precedent-setting.

    The challenge is discerning what issues are worth tackling, and to what degree. Of course, for trademark/brand protection, owners should challenge every infringement. But as the chicken/kale example showed, the owner’s victory can be pyrrhic, at least over the short term.

    So to my non-lawyer mind, the easy questions are the tin cans and the nightlights. Unless the can shape is trademarked, then stripped of its label, a can is just a can. The bottle nightlights conceivably fall into some notion of fair use as art. Whether any trademark-owner liability might exist in the case of a faulty lamp causing a fire, as you mused in the previous post, seems a stretch to me; but then again, awards in some of the more notorious “stretches” serve as cautionary tales, I suppose.

    The Brandles are a trickier issue. If it’s just “regular” scented candles, then it’s probably not a problem from a trademark point of view, though “branded” candles are likely a greater liability threat than nightlights. But if the scent is redolent of the brand–e.g., the Fireball and the Jim Beam Brandles smell like those beverages–then I think we have a problem. Those could reasonably be perceived as “officially licensed” in the eyes (and noses) of a healthy percentage of fans.

    I’m guessing that the trademark owners’ legal team will, at a minimum, advise issuing a cease-and-desist letter to Brandles. The extended question is whether removing the label from an otherwise recognizable bottle would suffice as compliance. For most bottle shapes, the likely answer is that it would suffice.