Those of you familiar with Adland will know just how useful and interesting a site it was for anyone interested in the recent history of commercial advertising. Started in 1996, the site served as a repository of commercials and a place that commented on ads and their impact on the advertising world. Cool concept. Adland has also made a fair amount of noise in being pro-copyright, dismissive of the concepts of "free" anything, and has on at least one occasion given Techdirt some shit for our stances, in this case on allowing users to turn off ads on our site.
So, I'm shutting down Adland right now. Why? Because the server host (for the webserver, not the data) just gave us 24 hours to leave. To "remove the domain adland.tv from our network within 24 hours" Why are they requesting this? Because Amy Tindell at Holland & Hart LLP in Boulder CO is demanding we remove a Thai Bridgestone ad from the archives. Remember "a Dog's life"? The ad from BBDO Bangkok that won silver in the Asia-Pacific Adfest in 2003? Yes, it's that one. They also claim that by writing the name "Bridgestone" we are infringing on Bridgestine's trademark. And that is why we are unceremoniously thrown off our web server host with a demand to get out in 24 hours.
To be clear: This. Is. Bullshit. The DMCA notice calls out the hosting of the commercial from well over a decade ago, but the entire point of Adland is to archive and comment upon advertisements. This is squarely fair use. As is the use of the Bridgestone name and identifiers in the context of what Adland does. Not to mention that the entire point of ads is to get them seen. Sending a takedown notice to anyone distributing what is apparently an award-winning ad makes zero sense.
As for the host, they really should know better. It's also odd to see the host demand the entire domain be removed from its services, rather than the specific content alleged to be infringing. Why in the world should Adland have to totally go over one DMCA complaint?
Interestingly, it appears that Bridgestone has been going around to other sites and DMCAing this specific commercial as well. YouTube had it, but now it has been removed. Notably, all of YouTube wasn't taken down due to the DMCA notice.
Now, there are some comments on Adland's LinkedIn posts suggesting that Bridgestone might be embarrassed at some of the content in that particular ad. But copyright is not the remedy for such embarrassment, if that is indeed what is occurring. And there was absolutely no reason that Adland should have had to shut down because of it.
Just when you thought trademark law couldn't get any stranger, we have a new story that takes it to a whole new level. Most often, trademark law is applied to logos and names of goods and services, yet there is still some untested ground. This is where Sony comes in. Several years ago, in an effort to rebrand its floundering Playstation 3 brand, Sony created a fictional Vice President of the Playstation brand named Kevin Butler. This character and the ads he starred in became a gaming sensation and brought the Playstation 3 back into the limelight. Here is a sample of these advertisements.
Such success never lasts, and earlier this year, the contract Sony had with Kevin Butler actor, Jerry Lambert, expired and he has moved on to other contracts. One of these new advertisement contracts is with Bridgestone Tires. Unfortunately, Lambert has starred in one ad that now has Sony up in arms. This ad features Jerry Lambert starring as an unnamed Bridgestone engineer along side two other actors portrayed playing a Nintendo Wii. This ad has resulted in Sony going over the edge, so to speak. The entertainment and electronic giant is now suing Bridgestone and Wildcat Creek, the corporation set up to manage Lambert's advertising career, for a variety of reasons, one of which is trademark infringement. You can view the original Bridgestone commercial at GoNintendo.
Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he's become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony's intellectual property, creates confusion in the market and causes damage to Sony.
This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.
According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an "exclusivity clause" that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.
This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert's work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.
Next is the claim of trademark infringement.
According to the lawsuit, "With the intent of unfairly capitalizing on the consumer goodwill generated by 'Kevin Butler,' Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial."
Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&D department.
These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.
"Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer," say the defendant. "Bridgestone denies that 'Kevin Butler' appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial."
Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on "Kevin Butler," that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.
This is certainly not the first time something like this has happened. Many years ago, Wendy's had a very successful advertising campaign starring Clara Peller as a little old lady asking a generic fast food chain the famous question, "Where's the beef?" She lost her job with Wendy's after she starred in a Prego commercial uttering the phrase: "I found it. I really found it."
What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert's career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?
It's been a while since the Pontiac Fiero was considered a "radical" car. If you don't remember it, the Fiero had a plastic body -- which some folks said made it unsafe (even though owners of it were more likely to be injured from an engine fire). Plastic cars have continued to improve, and here are just a few more car parts that are being made from environmentally-friendly plastic.
