|The message is clear -- but does it apply|
to brands as well as to humans?
"Denzel Washington's character in "Flight" drinks a lot throughout the film, but his portrayal of a highly functioning alcoholic pilot isn't going down well with brewing company Anheuser-Busch or the distributor of Stolichnaya vodka.From the standpoint of European trade mark law, this IPKat has taken the position that, in principle, once Anheuser-Busch has put its cans of beer on the market, the principle of exhaustion of rights applies and prevents the exercise of the trade mark right against any subsequent use of a branded product bearing its trade marks. Article 5(5) of Directive 2008/95 to approximate the laws of Member States relating to trade marks does mention the possibility of
Anheuser-Busch ... has asked Paramount Pictures Corp. to obscure or remove the Budweiser logo from the film, which at one point shows Washington's character drinking the beer while behind the wheel. Budweiser is hardly the only alcoholic beverage shown in "Flight," which earned $25 million in its debut weekend and is likely to remain popular with audiences. Washington's character frequently drinks vodka throughout the film, with several different brands represented. William Grant & Sons, which distributes Stolichnaya in the United States, also said it didn't license its brand for inclusion in the film and wouldn't have given permission if asked.
Although product placement, where companies pay producers to have their brands seen on-camera, have become ubiquitous in movies and television, experts say studios are not obligated to get permission before featuring a product in their work.
Rob McCarthy, vice president of Budweiser, wrote in a statement to The Associated Press that the company wasn't contacted by Paramount or the production company of director Robert Zemeckis for permission to use the beer in "Flight.":
"We would never condone the misuse of our products, and have a long history of promoting responsible drinking and preventing drunk driving. We have asked the studio to obscure the Budweiser trademark in current digital copies of the movie and on all subsequent adaptations of the film, including DVD, On Demand, streaming and additional prints not yet distributed to theaters".... Despite the companies' dissatisfaction with their inclusion in the film, experts say there is little they can do about it legally.
Trademark laws "don't exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items," said Daniel Nazer, a resident fellow at Stanford Law School's Fair Use Project. "It is the case that often filmmakers get paid by companies to include their products. I think that's sort of led to a culture where they expect they'll have control. That's not a right the trademark law gives them" ...".
"... provisions ... relating to the protection against the use of a sign other than for the purposes of distinguishing goods or services, where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark",but Member States have not exactly rushed to pass laws granting extended trade mark protection under this Article. There does remain the prospect of some sort of passing off through implied endorsement along the lines of Irvine v Talksport, possibly also running an argument that, once an Anheuser-Busch brand has been placed in a film, prospects of getting it placed in another film to greater effect may be harmed. In any event, the success of such actions is generally highly fact-specific rather than dependent on clearly applicable principles of law.
Merpel says, this sort of issue poses a problem for companies that do sue in this sort of situation. The greater the loss they claim, and the greater the benefit derived from the unwanted product placement, the larger is the sum that film and programme producers will be likely to ask from them in the future, quoting their own figures back at them.
Cats for movie placements here and here