LASERBLAST!

August 17, 2007 10:05 PM

Does reverse product placement exist? By that I mean, placing a competitor's product in an uncool enviornment in order to discourage sales.

I was watching episode 706 of MST3K, "Laserblast" and it was suggested that Pepsi had paid a large amount of money to include Coke in such a turd of a film.

In the recorded history of Viral/Guerrilla marketing, has such a strategery been employed?

posted by furiousxgeorge to media & arts (18 comments total)

In the leadup to the 2006 US election, the Republican party robo-called likely Democratic voters with "information about (Democratic candidate's name)". Many people reported receiving several such calls per day.

Since many people are likely to hang up on such calls more or less immediately, many people were left with the impression that the Democratic candidate -- not the Republican -- was harrassing them.
posted by Flunkie at 10:13 PM on August 17, 2007

NBC was sued for an episode of Heroes for showing the cheerleader character mangling her hand in a garbage disposal. The brand name, InSinkErator, was clearly visible in the shot. InSinkErator claimed that NBC, owned by General Electric (which makes its own garbage disposals), deliberately used the InSinkErator brand to make people think the disposal was dangerous.

In the lawsuit, Emerson claims that NBC used Emerson's trademark without the company's consent and that the show "implies an incorrect and dangerous design for a food waste disposer."

The company added in its complaint that NBC's depiction of the InSinkErator "casts the disposer in an unsavory light, irreparably tarnishing the product."

In all likelihood, a marketer would not pay to do this deliberately. For starters, there are trademark issues -- you can't feature a brand in a commercial film without first clearing the trademark. This is partly why you see some brand names (like on a T-shirt) pixelated out of reality shows -- most importantly, that brand didn't pay to be featured. Secondly, the producers are either unable or unwilling to clear its use.

This is also why InSinkErator was really able to file the suit -- the brand was apparently not cleared -- and that's why NBC agreed to edit future versions of the episode.
posted by Cool Papa Bell at 10:53 PM on August 17, 2007

Not really an answer to your question, but a strange example of product placement occurs on the American version of The Office. Staples is occasionally portrayed as the competition of the smaller paper business that the show centers around, but is mentioned by name in such instances.

One episode featured a character showing off a Staples brand paper shredder (with the joke being that he used a credit card to show off its power, only to realize he needed that card). In another, an employee quits and ends up working temporarily in a Staples.

It'd sort of be like Starbucks doing product placement in a show about a competing mom and pop coffee shop.
posted by TheSecretDecoderRing at 11:15 PM on August 17, 2007

Except in that case Staples is just mentioned by name, they don't actually show its logo, so I think the trademark issue is moot.
posted by Rhomboid at 11:35 PM on August 17, 2007

The electric chair's design seems to have been at least a bit marketing-driven.
posted by cac at 12:08 AM on August 18, 2007

For starters, there are trademark issues -- you can't feature a brand in a commercial film without first clearing the trademark.

I'm pretty sure that's not the case. Trademark is not like copyright; you can reference and use someone else's trademark as long as you are not diluting the brand.

The concern, I think, would be an action for tarnishment.
posted by Steven C. Den Beste at 12:26 AM on August 18, 2007

I'm pretty sure that's not the case.

Oh, Steve.

§32 (15 U.S.C. §1114). Remedies; infringement; innocent infringers

(1) Any person who shall, without the consent of the registrant—

(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
...
shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive

So, this is saying, you can't use the trademark without permission, but you can't always collect damages. Moreover...

(A) Where an infringer or violator is engaged solely in the business of printing the mark or violating matter for others and establishes that he or she was an innocent infringer or innocent violator, the owner of the right infringed or person bringing the action under section 43(a) shall be entitled as against such infringer or violator only to an injunction against future printing.

If you're "innocent," you can merely be prevented from future infringement. And since that would mean editing the movie or the TV show before re-broadcast or DVD sales, you probably wouldn't want to do it at all.

Again, this is why NBC agreed to change the Heroes pilot when it was shown again, and before DVDs were pressed.
posted by Cool Papa Bell at 12:47 AM on August 18, 2007 [1 favorite has favorites]

As a Subway employee, how about the recent slanderous ads run by Quizno's about "Wrong Way?"
posted by trim17 at 12:50 AM on August 18, 2007

Staples is occasionally portrayed as the competition of the smaller paper business that the show centers around, but is mentioned by name in such instances.

Those are paid product placements. What's unique is the creative usage, but the companies still retain script and final approval.
posted by Cool Papa Bell at 12:51 AM on August 18, 2007

As a Subway employee, how about the recent slanderous ads run by Quizno's about "Wrong Way?"

It would only be slander/libel if the ads contained an actual slanderous / libelous statement (e.g. "Subway puts rat poison in their sandwiches.") Otherwise, if they're just parodying the logo, that's arguably Fair Use, although Fair Use is normally argued for copyright, not trademarks.
posted by Cool Papa Bell at 12:56 AM on August 18, 2007 [1 favorite has favorites]

CPB: The critical phrase in there is this: ...is likely to cause confusion, or to cause mistake, or to deceive...

That's "dilution". If you do not cause confusion, or mistake, or deceive anyone, there's no tort.

According to this page, the only grounds for suit are "blurring" and "tarnishment":

"Blurring", by which the connection in consumers' minds between the plaintiff's mark and the plaintiff's goods or services is weakened; or

"Tarnishment", which means that the defendant's use is unsavory or unwholesome, or the mark is used in connection with inferior products.

So, for instance, if a porn movie was made and a recognizable soda bottle was used as a pleasure toy by some woman, that would be tarnishment. In fact, if it even showed up in a porn movie no matter what it was used for, that would probably be tarnishment.

But if in a mainstream movie someone drinks a soda with a recognizable brand on it, and if it doesn't in any way cause negative feelings about the brand (e.g. it's being drunk by the hero, not by the villain), then there's no tarnishment -- and no obvious blurring, either. Which means it would not be actionable.

But it could still cause bad feelings, even if it doesn't land in court. Given that a lot of movies make a large percentage of their return over their lives from broadcast on commercial television, it's not a good idea to piss off potential advertisers. I suspect that's the reason they mainly try to avoid it.
posted by Steven C. Den Beste at 1:05 AM on August 18, 2007

Getting back to the question asked by the OP, what you're talking about would be an example of "tarnishment" and as such it would be legally actionable.

Which is not to say it's never happened.
posted by Steven C. Den Beste at 1:34 AM on August 18, 2007

Actually, the critical phrase is "in commerce". Art/literature/movies/tv are given a great deal of leeway in the use of TMs when there is no tarnishment involved. They are not considered to be uses "in commerce" of the mark.
What you can't do is use someone else's trademark on your product, or to advertise your company. For example, no "Q Tips style cotton swabs", which might confuse consumers.
SCDB is also correct about tarnishment, which is what is contemplated in the OP's post. I agree that would be tarnishment -- or at least would risk being hauled into court to fight a tarnishment case, which is arguably just as bad.
posted by katemonster at 6:11 AM on August 18, 2007

The product placement for Staples in The Office is cool because, though it's competition for the protagonists of the show, the protagonists themselves are basically incompetent. So, though they're the "bad guys", Staples comes out looking good. Not really an example of what you're looking for, however.
posted by monkeymadness at 6:42 AM on August 18, 2007

Trademark infringement and trademark dilution are entirely separate causes of action.
posted by anathema at 7:44 AM on August 18, 2007

The only thing that springs to mind as even close is that scene in "Boyz n the Hood" when they beat the crap out of a guy wearing the "We Want Eazy" shirt. Ice Cube and Eazy were uh, 'feuding' at the time.
posted by lumpenprole at 1:12 PM on August 18, 2007 [1 favorite has favorites]

GM paid a good deal of money to be featured in the recent Transformers movie. Nearly early every press story on the product placements mentioned that it was no coincidence that Barricade, one of the bad guys, was a Ford car.
posted by anildash at 12:16 PM on August 20, 2007

If I remember correctly, in the movie The Island, Ewan McGregor was trying to find some information at this sidewalk kiosk that had some sort of Microsoft-branded search engine. I think he searched for two different names (or something) and the search engine couldn't find either of them. Not the most ringing of endorsements.
posted by blueberry at 3:28 AM on August 25, 2007