Commercials are always trying to get people’s attention — sometimes by being controversial and sometimes by being shocking. But even when a company tries to broadcast only sensitive and feel-good messages, there will always be some folks pointing out that companies don’t really care about people as much as profits. Here are just a few advertisements that might have just missed getting their message across.
It’s been a bad few weeks for some big brand advertisers, as a slew of offensive commercials had to be pulled and disowned by the likes of Pepsi, GM and Hyundai. In the case of Hyundai, the company apologized for an ad that showed off its new “pure water emissions” SUV by showing a guy try to commit suicide by running the car in his garage, only to discover that the lack of carbon monoxide emissions made that attempt a failure. Yes. Pretty insensitive. The ad agency, Innocean Europe — which happens to be owned by Hyundai’s chairman and his daughter — also apologized, saying “the intention of the viral ad was to employ hyperbole to dramatise a product advantage, culminating in a positive outcome. Clearly, we were mistaken, and we sincerely apologise.”
Of course, in true Streisand Effect manner, that just resulted in more people uploading it:
And, of course, the video is now available from other sources as well, such as below:
Yes, I can understand why they would make the effort, in an attempt to show that they really, really are sorry and don’t want this ad online, but of course once “the story” takes over, a lot more people are interested in seeing the video. And, try as you might, you can’t make online content completely disappear.
We recently wrote about the terrible ruling in which a district court said Hyundai had diluted Louis Vuitton’s trademarks with a one-second clip of a mock LV basketball in a commercial. Now THR reports that Louis Vuitton has included that ruling as part of a new filing in another ongoing trademark suit against Warner Bros., over a scene in The Hangover Part II that briefly shows (and refers to) a Louis Vuitton bag. Warner Bros. is seeking summary judgement in that case, on the quite sensible grounds that featuring trademarks and brands in a film is protected speech under the First Amendment, but Louis Vuitton is using the Hyundai ruling as a counterweapon:
The French brand says that judge’s decision two weeks ago shows why it should be able to go forward with its claims against Warner Bros. for infringing and diluting its trademark by showing, for one brief moment in the movie, Zach Galifianakis telling someone who pushes his bag, “Be careful, that is … that is a Lewis Vuitton.”
“As Judge Castel recently ruled in Louis Vuitton v. Hyundai, Louis Vuitton’s ‘aggressive’ enforcement of its trademark rights and prompt action against those who misuse its trademarks are necessary concomitants of its exclusive rights in the brand,” the French company says in a court filing.
This is how a law gets out of hand: each bad ruling diminishes its intent a little further, until it no longer serves its original purpose. This is a big part of what happened to copyright law, and bullies like Louis Vuitton are causing a similar erosion of trademark: a shift from laws that benefit everyone to laws that grant broad powers of ownership and control to rightsholders, infringing on freedom of speech in the process. Of course, Warner Bros. has been through something similar before, when the artist behind Mike Tyson’s face tattoo sued over the very same movie—though that was a copyright issue, and settled confidentially. The argument against trademark dilution is likely even stronger than the argument against copyright infringement, but it remains to be seen how Warner Bros. will respond to Louis Vuitton’s latest move.
Of course, as always, one can’t ignore the irony of Warner Bros.—a big proponent of stronger intellectual property laws—fighting against overly restrictive trademarks, and citing the First Amendment in the process. This hypocrisy is something media companies don’t want to acknowledge: as content producers and distributors, they rely on the very freedoms and fair use exceptions that they are constantly seeking to curtail.
A little over two years ago, we wrote about what we considered to be an absolutely insane lawsuit from Louis Vuitton, arguing that a mock basketball, which appeared in a Hyundai commercial for one secondviolated LV’s trademark. You can see the commercial below:
If you missed it (entirely possible), at the 3 second mark, this image flashes briefly:
The point of the commercial is to get people to imagine what life would be like if “luxury” items were everyday items, and thus the mock basketball with symbols designed to suggest a luxury bag, like a Louis Vuitton bag. As we (and many, many trademark experts) suggested when the lawsuit was filed, the claims here are simply crazy. There is simply no harm whatsoever done to Louis Vuitton by this ad. Most people wouldn’t even notice the markings and if they did, what possible “harm” would it do? The answer is none. There is no consumer confusion whatsoever. There are no LV basketballs that won’t be sold because of this (in fact, the judge in this case notes that, after seeing this commercial, some people wanted one — which would suggest a market opportunity, rather than litigation).
Of course, Louis Vuitton’s complaint didn’t rest on the bedrock of trademark law — the likelihood of confusion — but a more modern bastardization of trademark law called “dilution.” The concept of dilution in trademark law is an affront to the purpose of trademark law, which is supposed to be about protecting consumers from confusion. That is, it’s supposed to be about preventing someone from buying Bob’s Cola, thinking that it’s really Coca-Cola. But there’s no such risk here. Dilution, however, flips the very concept of trademark law on its head and pretends (falsely) that trademark law is about protecting a company’s trademarks from anyone doing anything at all with it that the company doesn’t like.
Unfortunately, the courts don’t always get things right — which is why we get such ridiculous lawsuits in the first place — and here, amazingly, the district court has sided with Louis Vuitton in its dilution argument, granting summary judgment on Hyundia’s liability for dilution, while it rejected Hyundai’s movement for summary judgment rejecting all of Louis Vuitton’s claims. This is, in many ways, horrifying.
Eric Goldman’s summary, linked above, highlights the many problems with the ruling — while cautioning that the details suggest this type of ruling is limited. Still, as he notes:
And then we have an opinion like this–where the court finds trademark dilution without finding infringement (not resolved yet) and in a situation where EVERYONE can immediately tell there was zero harm to the brand owner. Rulings like this make trademark academics shudder in fear that trademark dilution will swallow up all of trademark law and confer rights-in-gross to trademark owners. While I don’t share those fears for reasons I’ll explain in a bit, unquestionably this is a bad ruling.
Goldman goes on to highlight some of the more specific problems with the ruling, but the key point is simply that there is no harm here. None. Absolutely none. Perhaps less than none, given the reports of interest in LV basketballs. When the law doesn’t care about that, then the law is, unquestionably, broken. A ruling like this automatically lessens respect for trademark law, because it makes no sense at all. It makes a mockery of the judicial system by suggesting that lawsuits like this have any merit whatsoever.
Well, well. Two years ago, we wrote about a patent held by Erich Spangenberg, a notorious patent hoarder who is involved in a ton of lawsuits against companies who actually make stuff, attacked with highly questionable patents. The patent in question (5,367,627) basically described an electronic parts catalog, which Spangenberg used to sue tons of companies. The absolute ridiculousness of the patent even got the EFF’s attention after the USPTO agreed to re-examine that patent (though, a quick look through the USPTO’s system doesn’t seem to show anything actually happening with the re-exam — unless I’m missing something… which is entirely possible).
That said, one of Spangenberg’s many lawsuits over this patent, done by a shell company called Orion IP or, later, Clear with Computers, was against Hyundai. A jury sided with Spangenberg over Hyundai, and Hyundai appealed. After all that effort, the Federal Circuit has dumped the original ruling, noting that the “invention” (if you can call it that) was “anticipated” by earlier inventions. But, honestly, if you want to get a deeper sense of just how messed up the patent system is, you should read the full ruling:
What gets me is the pure absurdity of the whole thing. First of all, this is an electronic catalog. The argument that this should be patentable never should have passed the laugh test. But, it gets even more ridiculous. When Hyundai points to an electronic parts catalog system that pre-dated this patent, the response from the patent holder was that this invention was different because not only was it a catalog but… it also created a customer proposal. Well, knock me down and sign me up for a 17-year-monopoly. I’m sure no one could have possibly come up with the idea for using an electronic catalog to create a customer proposal without such an incentive… Thankfully, the court found that the important claims in the patent were anticipated by the other product, but just the fact that they had to go through this ridiculous process should raise serious questions about the patent system.
It took me a second viewing before I spotted it. The commercial itself plays on the idea of “what if everyone could experience luxury items” showing various examples of “luxury” items being used in more everyday settings: yachts in driveways, cops eating caviar and… some guys shooting hoops with a “luxury” basketball using the typical Louis Vuitton markings that you see on LV purses/handbags/etc.
Louis Vuitton is notoriously (and ridiculously) aggressive when it comes to trademark infringement. A couple years back we wrote about LVMH (parent company of Louis Vuitton) suing a Darfur fundraiser for creating a t-shirt of a Darfur victim “pimped out” to look like Paris Hilton, including a designer handbag with symbols made to look like the LV symbols.
So, yes, that’s exactly what this lawsuit is about. DSchneider points us to the Consumerist’s article laying out the details and I’ve embedded the lawsuit filing below:
Frankly, this lawsuit is ridiculous. LVMH is claiming that people might be confused? In what world? Seriously. In what world is anyone going to view the Hyundai commercial and think that it implies any kind of LVMH endorsement of Hyundai. It’s a joke — and any moron in a hurry knows that the LV basketball isn’t a sign that LVMH is working with or endorsing Hyundai.