The Legal Infrastructure of Business: Empty Bottle

Background

The Associated Press reported on Monday that brewer Anheuser-Busch asked Paramount Pictures Corp. to either blur or take out?its Budweiser logo from the new film ?Flight?.? In the movie, Denzel Washington?s character is a high-functioning alcoholic who miraculously lands a crashing plane while under the influence of alcohol.? Denzel?s character is seen drinking Budweiser throughout the film.? Anheuser-Busch is upset with this association and is?worried about the negative advertising effects.? Rob McCarthy, VP of Budweiser is quoted as saying, ?We would never condone the misuse of our products, and have a long history of promoting responsible drinking and preventing drunk driving.?

Anheuser-Busch has asked Paramount to remove its Budweiser label from all current digital copies as well as all future adaptations of the film.? This request brings about the potential for a lawsuit.? Trademark lawsuits much like this have been seen in the past; however, courts typically side with the studios in cases like these.? In 2003, Paramount won a case against the makers of ?Slip ?N Slide?.? The movie "Flight" also shows several other brands of alcohol consumed throught the film.

It is believed that the current trend of product placement, where a company pays a production company to use its product, has companies who are owners of trademarks confused.? Trademark laws do not grant control to companies of the use of their products in films or television. In fact, the use of trademarked products is protected under several limitations including federal ?fair use? laws. In order to win a suit brought against Paramount, Anheuser-Busch would have to prove two things.? First, it would have to prove that the use of the product in the film was authorized and second that the audience associated the product with the film ?Flight? and the alcoholic character.

Thoughts

This story is of particular interest due to the noticeable increase of product placement in films.? Most times, companies secure lucrative deals with studios in order to feature their products.? If featured positively, the product gets good association and advertising. In fact, some television shows even go to the extreme of obscuring the image of some products in their shows because the company has not paid them to use the product in their show.

In cases where the company pays the studio, the company should be protected under the law to not have its trademarked product negatively represented.? The exchange of money is an implied-in-fact contract and obligates the studio to perform. The more difficult question to answer is when no implied-in-fact contract comes into play.?

By definition, an owner of a trademark may initiate legal proceedings for trademark infringement.? Trademark infringement can occur when a second party misuses or misrepresents what the trademarked product intends.? However, as mentioned above the company (Paramount Pictures in this case) using the trademarked product is protected under the ?fair use? defense.? ?Fair use? is affirmed when the defendant is using the trademark to accurately depict the uses of its product or when the defendant is using the trademark to identify the owner.? The truth is that Budweiser beer can be consumed by alcoholics.? I believe that Paramount is protected here under "fair use".

This story provides the other side of the Tim Tebow article on trademarks posted earlier.? It brings up the point, aside from what he trademarked, that non-owners of trademarks are protected under several limits and defenses to claims of infringement. It turns out, perhaps?more people will be able to Tebow than we thought, be it good or bad news.

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Sources:

http://newsfeed.time.com/2012/11/07/budweiser-wants-to-be-removed-from-paramounts-flight/

http://ca.movies.yahoo.com/blogs/wide-screen/flight-budweider-product-placement-gone-wrong-200352757.html

http://bigstory.ap.org/article/apnewsbreak-budweiser-seeks-removal-flight

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Source: http://picker.typepad.com/legalinfrastructure/2012/11/empty-bottle.html

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