A recent advertisement caught my ear because it involved financial services offered by a guy named Charles Hughes a/k/a Chuck Hughes and the catchy marketing phrase Trade Like Chuck:

It instantly reminded me of a piece I wrote in 2010 called: Exposing Two-Face Brands. One of the branding truncation examples I wrote about

My trademark antennas automatically rise when I hear about a brand owner announcing plans to trade in one brand for another, as GM recently and surprisingly did with the Chevy nickname (brand and trademark), in favor of the longer and more formal Chevrolet brand name (and trademark). Hat tip to Nils Montan of IPAlly, for spotting

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.


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