When can a brand owner lawfully use a competitor’s trademark on the brand owner’s product?

Over the years, we’ve lifted away a lot of dust on the hairy subjects of classic trademark fair use, nominative fair use, and comparative advertising, especially in the context of billboard ads.

It isn’t every day we see comparative billboard ads actually affixed to a product in question, so I can’t resist sharing this vacuum cleaner canister that captures all of these legal allergens at once:

For those unfamilar with the fierce competition between the Shark and Dyson vacuum brands, above is a cropped photo of a Shark Lift-Away canister vacuum, from my home closet.

As you can see, the label affixed to the canister portion of the vacuum actually refers to the competing Dyson brand twice. Just imagine what our friend James Mahoney might be thinking.

Why would the leading household vacuum cleaner brand — Shark — stoop to give its competitor Dyson free mentions (albeit negative) and publicity? Isn’t that kind of like punching down?

Actually, I’m not sure whether Shark had yet surpassed Dyson as market leader, when the canister left the store and entered our closet, so the above label might have been a punch up?

And, if comparative advertising induces sales, why does someone who already purchased the product need more reminders — with each use — that Dyson sucks, in more ways than one?

Turns out, the label shown above, as we now know, is fairly easily removed, so I suppose the joke is really on us, for leaving this comparative advertising on the product for more than a long while.

One of the dangers in affixing comparative advertising claims or content to the product itself may be, over time the claim might lose its original truth; perhaps that’s why the label is removable?

  • James Mahoney

    I’ve often been guilty of overestimating peoples’ ability to see and draw conclusions without having to be beaten over the head with, to me, obvious “truths.” So this one might fall into that categorical blind spot of mine.

    That said, Shark could have just as easily made the point with only the two images showing their product in use. I’m guessing that most vacuum cleaner users have banged into low furniture somewhere along the line–I certainly have. So the second Shark image makes two points: this product fits under, and the image reminds me that that is a good attribute to check, regardless of manufacturer.

    So why offer Dyson free advertising? It’s not too big a stretch for someone comparison shopping to think, “Ok, so the Ball is out, but there’s this other Dyson model that will take care of that drawback…”

    And speaking of overestimating peoples’ ability to grasp the obvious, how long after you got it home did you allow your cleaner to display the removable advertisement, Steve? ;-)

    • stevebaird

      James, funny, thanks for dropping by. In answer to your question, kind of: Five minutes after me noticing, but don’t ask me how long it was in our home before noticing:)