Brand X, Where X = ?

Many of us remember advertising of the sixties, seventies, and eighties, featuring the ubiquitous Brand X.  The guys at Brand X where admirable for fielding a product in almost every conceivable industry, yet pitiable, because time after time Brand X’s offering failed in the 30 second experiments that punctuated our television programming.

Brand X is now gone from the marketplace, not because of its many, many failures, but because manufacturers no longer need to refer to  competitive product as Brand X; they can specifically mention a competitor’s brand in advertising, and even use the mark on product packacing.  There are three (deceptively) simiple rules govering the proper use of a competitor’s mark:

  1. The use must be truthful.
  2. The use must not cause unnecessary confusion.
  3. The use should not alter or deface the trademark.

The use of the mark must be trutthful and accurate.  The use should be literally true, but it should also not leave consumers with a false impression.

The use of the mark also must not cause unnecessary confusion.  It should be clear that there is no relationship with the competitor.  The competitor’s mark should not be so large or prominent that consumers mistakenly beleive that the competitor sponsors or endorses the use of tis mark.

Lastly, the competitor’s mark should not be altered or defaced.  While this last rule is not always essential, a violation will almost certainly bring a complaint from the owner. The status of the mark, and its true owner, should be properly identified, for example “ACME is the registered mark of Acme Company.”

Competitors trademarks can be used in advertising and on product packaging, and when done properly, the public benefits from the ability to make a fair comparison and a better purchasing decsion.  However, because of the sensitivity all brand owners have toward their marks, the use must be carefully crafted and reviewed by experienced counsel.


“Oh Give Me A Home, Where the Bison Roam, . . . “

Similarity of trademarks is judged based upon appearance, sound, and meaning, as Sazerac recently reminded us.  Sazerac, the makers of Buffalo Trace bourbon sued  Intercontinental Packaging Company d/b/a Crosby Lakes Spirits Co. over their Bison Ridge brand of Canadian whisky.  While “buffalo” and “bison” are different is appearance and sound, they are one in the same animal, the scientific name of the American Buffalo is bison bison.  It will be interesting to see whether similarity of meaning carries the day.