So, it's November. 😦 How the hell did we get here so fast!? I swear it was just January... and now it's not. It's friggin' NOVEMBER!
And that means everyone is starting to think about one thing:
Shopping! 🛍
BLACK FRIDAY. SMALL BUSINESS SATURDAY. CYBER MONDAY.
Your tribe is ready for some sweet deals - so you better be ready to deliver something good!
Now, actual sales and ad strategy is totally outside of my wheelhouse, so I have no real advice for you there, but I DO have plenty of experience cleaning up post-sale legal messes!
I obviously preach obsessively about not using other brand's trademarks and infringing on their rights - and I'm still all about that.
However, there are ways to LEGALLY use someone else's trademarks (yep, even the registered ones) to your advantage - without stepping into any nasty legal 💩 this sale season!
For example, if you're trying to get a leg up on your competitors, comparing your own brand, products, or services to theirs is actually okay! And you can even reference their trademarks in your advertising when doing that!
I think one of the most famous examples of this is Pepsi using a can of Coca-Cola in it's "Pepsi Challenge" ads.
Am I aging myself here? For the record, I wasn't alive when this commercial aired, but I still know about it and if you don't know wtf I'm rambling on about, you can see it here. 🤣
Anyway, yes, using your competition's trademarks in your marketing and advertising is fair game, HOWEVER, it's gotta be done within the confines of the law.
So, what does that mean? Well, a couple of things...
Merely referencing another brand name is generally considered "fair use". So, just passively speaking or writing about another brand or using their trademark to describe their product or service, that should be fine. I'd even venture to say that puns, or plays on words using a trademark would fall under "fair use". Obviously, the more unremarkable the usage of the trademark, the more fair use-y it is.
Actual parody ≠ infringement. Piggybacking off of the puns I just mentioned, parody is a terrific way to get people's attention without infringing on someone's trademark rights. So what exactly qualifies as "parody"? So, I think law and real life actually managed to finally come up with a similar definition for something - parody is basically entertainment in the form of a light-hearted comparison or reference to something or someone else. And parody has generally been treated as non-infringing by the courts, as long as consumers aren't going to be confused and think that there's some sort of relationship between the brand doing the parodying and the brand being parodied. So, for example, Louis Vuitton was not able to shut down a dog toy brand from making and advertising chew toys shaped like purses with "Chewey Vuitton" on them. The court found that this was a successful parody and consumers wouldn't actually believe that Louis Vuitton, a luxury goods company, was producing $16 dog toys.
Your ad has to be truthful. Now it's one thing to just say "our product is better than brand X" - that's an exaggeration, or an opinion. In legal circles, we call this "puffing". (We have a lot of stupid names for things, it's fun, really.) It's kind of hard to prove something like this is false, right? It's another thing to say " 10 out of 10 experts agree that our product is better than brand X". If you're going to say that, you better have the results to back that up!
Your use of the competitor's trademark can't give off a false impression of some connection, approval, or sponsorship of your brand by the competitor's brand. The goal here is to compare - NOT imitate or lead people to believe that you're somehow associated. And sometimes you can do that inadvertently. Like, for example, if you say "if you love brand X, you should check out our brand!" I think you can see how something like this could lead to some marketplace confusion and have some consumers thinking that your brand is just some new or related version of the competitor's brand. So you can avoid that by either listing multiple brands (you can't be related to ALL your competitors) or by simply putting some kind of visible disclaimer, disassociating yourself from them.
Your use can't ruin the reputation of the competitor's trademarked brand. So this one gets a little tricky, and we're delving a little into "free speech" land here. Again, just broadly, the goal is to compare, and show how you're superior to the other brand, but to do that with the least amount of shit talking as possible. 😉 In short - say you're great without outright saying (or implying) that they suck.
And that's how it's done! I hope that you've found this helpful, and if you did, please feel free to reach out and let me know how you plan on incorporating any of this into your holiday advertising!