We have had somewhat of an unplanned blue jeans theme here at DuetsBlog, with Karen blogging about the upside down triangle logo associated with Guess designer jeans from the 1980s, here, and Tiffany blogging about Levi Strauss and Abercrombie & Fitch butting heads, here. My turn now to talk about a blue jean brand, along with airbrushing, non-traditional trademarks, and nominative fair use.

Some time ago I came across an advertiser’s reward-type promotion, inviting customers to refer a friend and “pocket the cash” — basically, a free cash reward for the successful referral. What interested me about the promotion was the prominent depiction of a Levi’s back pocket complete with the Levi Strauss Double Arcuate Design on the denim pocket. After realizing this was no co-branding exercise and that a pair of Levi’s jeans was not part of the reward, only cash, and this depiction was merely the advertiser’s play on words or an attempt to reinforce the words in the promotion, it led me to wonder whether the advertiser even realized that it had used one of Levi Strauss’ non-traditional trademarks, most likely without permission.

Here are a few examples of federally-registered non-traditional trademarks owned by Levi Strauss:

Mark ImageMark ImageMark Image

The one I encountered in the reward promotion was the center image minus the tab, so it’s possible the well-known tab element was airbrushed to remove it as a trademark issue. The broader-scope registered mark on the right, however, indicates that simply removing the tab may not be sufficient to avoid all possible trademark issues.

Continue Reading Picking Levi’s Pocket or Nominative Fair Use?

Airbrushing is a familiar technique among advertisers looking to avoid the risk of trademark infringement or dilution liability when branded props of others appear and would otherwise be recognizable. It can work well when removing a traditional visual trademark, i.e., a logo or word mark, because there can be no likelihood of confusion with (or dilution of) a visual mark when the claimed mark cannot be seen.

But what about when a branded prop dominates the ad or the identifiable trademark is another’s product container or package, a single color, trade dress, or perhaps the shape or configuration of the product or prop itself? What is critical for advertisers to appreciate is that when non-traditional trademarks are the subject of the ad and concern, the airbrush and any digital manipulation are less helpful and may be entirely ineffective in erasing trademark liability.

By way of a hypothetical example in the non-alcoholic beverage world, airbrushing the Coca-Cola word mark may not be sufficient to avoid liability, so long as the distinctive Coca-Cola bottle is left intact, say, in a Chevrolet ad. Likewise, by way of another hypothetical example, this time in the alcoholic beverage world, presumably the current owner of the Schlitz brand would object to another’s commercial use of its distinctive Schlitz label even if the Schlitz word mark was airbrushed or otherwise removed.

Now, for a not so hypothetical example concerning Schlitz’ ads, continue reading after the jump.

Continue Reading Using Another’s Body to Sell Your Products? The Problem of Airbrushing Non-Traditional Trademarks