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Techdirt is crying foul (again) and this time, wrapping the “trademark bully” mantle around the magenta-colored neck of the T-Mobile brand for enforcing its color trademark against OXY.

While I certainly don’t have the details of the dispute (and it appears Techdirt doesn’t either), and OXY hasn’t produced the actual

There aren’t too many things I enjoy more than speaking about the legal implications of branding.

Our friends at BlackCoffee captured a talk I gave to a group of marketing types a while back, on black and white film (thank goodness), and they have graciously posted a 34 minute excerpt, here.

Some of the topics

Guys and gals on the street waiving orange flags aren’t the only parking lot lures in Twins Territory:

We’ve talked before about how some of those doing business or advertising in close proximity to Minneapolis’ brand new Target Field — home to the Minnesota Twins — appear to see advantage in using the Twins name (and now

The newest fare at the Minnesota State Fair is not Camel-on-a-Stick, Buffalo-on-a-Stick, or any other kind of Food-on-a-Stick, but rather, Trademark-on-a-Stick.

Earlier this week, the Minnesota State Fair (owned and operated by the Minnesota State Agricultural Society, a Minnesota State Agency) was hot to skewer the unauthorized use of its nearly three-decade-old and more recently trademarked logo, by incumbent Republican U.S. Congresswoman Michele Bachmann, in a political ad targeting DFL challenger Tarryl Clark’s record on tax policy.

This trademark objection has generated quite a bit of publicity, with coverage being reporting by MinnPost, The Minnesota Independent, the New York Times (blog), Politics Daily, MPR News, TPM, and Politico. The Bachmann ad referenced the MN State Fair and used its official logo while suggesting that Clark has voted to increase taxes on what foodies covet at the fair, including their favorite corn dogs, deep fried bacon, and beer.

Central in the debate over the lawfulness of the Bachmann campaign’s use of the logo is a question we have pondered on DuetsBlog before (e.g., here, here, and here), namely, whether the use of another’s logo crosses the legal line and is likely to cause confusion as to sponsorship, affiliation, approval, or endorsement, or whether it may constitute lawful nominative fair use. So, it should be no surprise to readers of DuetsBlog, that in the end, it is consumer understanding of the use in the ad that controls whether or not it is lawful.

The Minnesota State Fair’s objection certainly is not frivolous and is rooted in a common and traditional trademark concern over likelihood of confusion. Bachmann for Congress political ads begin with the statement: "I am Michele Bachmann and I approve this message." According to Minnesota State Fair officials, Bachmann’s use of the above Minnesota State Fair logo is likely to lead viewers to incorrectly believe that the Minnesota State Fair approves Congresswoman Bachmann’s message or has endorsed her campaign. What do you think, is that what viewers will believe?

Bachmann’s campaign denies that the logo use was unlawful, but without explaining why no confusion is likely and without specifically articulating what would likely be a nominative fair use defense, it voluntarily has decided to drop use of the official logo and instead opted to switch to a more "generic" image. Apparently what the campaign means by "generic" is not that it lacks the look of a trademark and/or logo, but rather is one not specifically used or owned by the Minnesota State Agricultural Society.

Bachmann for Congress’ revised television advertisement may be viewed here, showing no use of the trademarked official logo, but I’d hardly call the use "generic" — it remains a  logo use, even if it is a fake one that swaps fireworks for a ferris wheel, and alters the color scheme and typeface. Do you think that consumers will notice or recognize the fake logo as being fake or just believe it is an additional logo used by the MN State Fair that they haven’t seen before?

Interestingly, the change may not be enough to satisfy the MN State Fair. Apparently, it continues to have concerns about the revised Bachmann ad, and it has asked the Attorney General to look into the question of whether the change is sufficient to avoid confusion as to endorsement of the Bachmann campaign. Having said that, with only a few more days left before the close of the 2010 MN State Fair, one must wonder whether the campaign will move on and moot this lingering concern too, leaving the State Fair ads behind, as it continues to run new ads down the final stretch of the campaign.

Stay tuned, tomorrow I’ll attempt to make the case for why the State of Minnesota needs to hire an experienced trademark attorney.

Bonus political speech consideration below the jump:


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Who is responsible for this billboard ad? Is it a Google advertisement? Verizon? Motorola? Droid?

Whatever the answer, it helps make the point visually that trademarks require protection beyond mere confusion as to source; basically, the same point we made a while back (in response to Seth Godin’s trademark position and then during a friendly sparring match with Ron Coleman), as we discussed

Putting aside, for now, the unsettled question of who currently owns the iPad trademark, and Dan’s perspective on Apple’s trademark clearance strategies, from last week, look at what our finely-tuned e-mail spam filter just snagged:

It is a similar story to my previous Free Dell XPS Laptop Spam Scam? blog post from last December. Here, however, the Apple, iPad, and the (possible)

What if you were told that if you agreed to "test" a Dell XPS laptop you could keep it, for free?

Would you expect the offer to be from Dell Computer?

After all, who else but the manufacturer would care to give a computer away for simply having you test it?

Would you at least expect the offer to be affiliated with, or authorized, or approved by Dell Computer?

What if the unsolicited email offer avoided your spam filter and looked something like this?

Would you click on the "CLICK HERE" icon as instructed, or would you scroll all the way down to the bottom of the page to see if you might be able to learn more before clicking?


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