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Terrifying? No, Just Another “Priceless” Imitation!

By Steve Baird® on April 13, 2009
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What is it about some advertising campaigns that make them magnets for imitation?

For example, the Got Milk? imitators appear to be endless in numbers, but that is the subject of another post for another day.

For today, with respect to a different imitation magnet: There must be an endless number of creative and original ways to market a series of home and self defense videotapes, I suspect. Even relying on fear as an underlying theme to sell these videotapes, there must be only a few less than infinity still possible.

So, why the need to borrow from a famous ad campaign here — one I won’t mention until after the jump below?

Seriously, did this published print ad survive legal review? If so, was the review limited to trademarks? Were copyrights ignored altogether?

While it appears the ad substitutes TERRIFYING for the federally-registered service mark PRICELESS, avoids literal use of the federally-registered tag line THERE ARE SOME THINGS MONEY CAN’T BUY, FOR EVERYTHING ELSE THERE’S MASTERCARD, and it may be debated whether consumers are likely to be confused as to whether MasterCard sponsored or endorsed the advertised videotapes, a successful copyright infringement claim requires no confused consumers. It simply requires “copying” of an “original” work of authorship, and you can be the judge on how a copyright claim might be decided.

MasterCard certainly has enjoyed success in enforcing its copyright and trademark rights against infringing uses, but there are limits, as Ralph Nader demonstrated in 2004, by successfully defending his party’s non-infringing use of the PRICELESS service mark and the political parody and non-commercial fair use of the PRICELESS copyrighted advertisements. To view the Nader commercial in question, click here. To obtain a copy of the decision click here.

MasterCard’s long-running and award-winning “Priceless” ad campaign is said to have “entered into the lexicon of common pop culture.” Indeed, new versions keep coming and many different versions of MasterCard’s “Priceless” ad campaign can be viewed here. There is certainly no shortage of “banned” “Priceless” parodies and spoofs available for viewing on YouTube and elsewhere (many not suitable for viewing on DuetsBlog, so no links, sorry), but of those available on-line, none appear to be hawking goods or services (an important point of differentiation from the above example). Perhaps the adaptability, ubiquity and notoriety of “Priceless” is what helps render it an imitation magnet, but I think there must be more.

In fact, pure creative genius is rare, making the award-winning “Priceless” ads a perfect magnet for imitation, especially when combined with their notoriety, ubiquity, and easily adaptable format. Having said all that, I’m thinking the Clint Smith’s Thunder Ranch example might qualify as a notable “Ugly” — to quote DuetsBlog Guest Blogger Aaron Keller from Capsule.

Photo of Steve Baird® Steve Baird®

View my professional biography

Just so you know, I’m all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print…

View my professional biography

Just so you know, I’m all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, “Who owns these brands” and “Did they really register those marks?” To understand the depth of my passion for brands and helping clients achieve their business goals, legally, you must understand that my interest in business and branding goes back to the late 1960s. The very first brand I recall profiting from was Jiffy®. Even before being old enough to deliver papers for the Iowa City Press Citizen, between episodes of Bewitched®, I would bake cupcakes and walk my finished product door-to-door, sampling along the way, of course, throughout our Kimball Road neighborhood, mostly selling them to husbands whose wives didn’t bake enough (probably watching Bewitched®), according to them at least. One hundred percent profit margins are easy when you can use the necessary equipment and raw materials directly from Mom’s kitchen. Mass producing “hot pads” (pot holders, not real estate) and selling them door-to-door was another favorite childhood business venture at the ripe age of six. Graduating to lawn-mowing age worked well with my paper routes because I could easily see who needed help cutting their grass and, in some cases, avoiding neighborhood ridicule. Yes, you’re right, Dad loaned me his Lawn-Boy® mower on weekends, rent-free, and even bought the gasoline (Dad was not brand loyal at all with gasoline, so I have no brand memory there). Another pure profit opportunity. Let’s just say that Mom and Dad were generous, unsecured investors in my development and future. Thanks Mom and Dad, I now understand the meaning of overhead and capital improvements! I bucked a lot of family tradition and jokes to become a lawyer and a trademark guru. There is not one lawyer in the family tree, as far as my sister knows (and she would know). Nearly everyone is, or was, a teacher of some kind. That must be where my passion for educating others about the legal implications of branding comes from. Basically, I have been speaking about the legal implications of branding since the early 90s, after permitting my pharmacist’s license to expire (after being a victim of an armed robbery where Dilaudid® was on the top of the gunman’s list of desired controlled substances), and shortly after working for an 86 year old federal judge whose chambers had a nice view of the White House in Washington, D.C. While I’d like to say that the movie My Cousin Vinny inspired me to become a lawyer, it was released two years after I graduated from law school. So, really, I guess it just inspired me to be a better lawyer and leader. For now, you can call me a “thought-leader” in the trademark world, and the thankful leader of a very talented group of creative and insightful lawyers and staff who are dedicated to putting our intellectual property clients in the best possible position to achieve their business goals. When I’m not in the office, “cracking the whip,” making sure others in the group keep their bios on this blog short and sweet, working (which isn’t to say I’m not still thinking about my clients’ businesses), or soaking it up in the hot-tub with my soul-mate, I am a dedicated family man – a.k.a. the chauffeur. Until they reach the driving age, I’ll continue to shuttle my four wonderful kids around to their athletic and other events, at which you can find me cheering in the stands.

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  • Posted in:
    Intellectual Property
  • Blog:
    DuetsBlog
  • Organization:
    Winthrop & Weinstine, P.A.
  • Article: View Original Source

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