Earlier this week, a fake Audi ad exploded on Reddit making clever use of Audi’s four-ring logo by poking fun at the Olympic rings fail during the opening ceremony in Sochi. We may never know if the ad was a brilliant piece of fan fiction or a cunning marketing ploy, but there are certainly take-away lessons for real-time marketers.
Hypothetically speaking, the Olympic rings are the exclusive property of the International Olympic Committee (IOC), which requires interested parties to obtain prior written consent from the committee before reproducing them.
Putting aside for the moment an obvious malfunction of good will, international relations and even brand integrity, if the ad had actually been created and distributed by Audi, the Olympic rings as a trademark symbol – not owned by the Russians – may afford the company a certain degree of First Amendment protection because artistic and editorial parodies of trademarks serve a valuable critical function.
Some courts have also identified “nominative use” of a trademark as necessary to identify and talk about another party’s products and services, which falls under the fair-use defense.
It is also true, however, that the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark. Herein lies the sticky area. The fact that the ad appeared on Reddit, rather than a newspaper or magazine, might further advance Audi’s case in this particular instance.
One Redditor speculates that that the Olympic committee could make the argument that Audi was using the similarity of the rings to suggest that the Olympics were sponsoring Audi in order to benefit unjustly from good will and recognition of the games. “That said, Audi also has a trademark on their interlocking rings, and would probably look to fair use (parody?) as a defense to their use of the distinctively Olympian ring arrangement.”
Another Redditor posits: “It seems silly, and probably is, but weirder things than the Olympics winning this hypothetical suit have happened. As an example, Exxon Mobil is currently suing Fox for infringing on their trademark with the FXX logo. They will probably fail, but you really never know.”
Why take chances? While it’s true that the broken rings are not the entirety of the original trademark, it is also possible the that the IOC could take action against Audi for trademark dilution. According to Harvard.edu:
Once the prerequisites for a dilution claim are satisfied, the owner of a mark can bring an action against any use of that mark that dilutes the distinctive quality of that mark, either through “blurring” or “tarnishment” of that mark; unlike an infringement claim, likelihood of confusion is not necessary. Blurring occurs when the power of the mark is weakened through its identification with dissimilar goods. For example, Kodak brand bicycles or Xerox brand cigarettes. Although neither example is likely to cause confusion among consumers, each dilutes the distinctive quality of the mark. Tarnishment occurs when the mark is cast in an unflattering light, typically through its association with inferior or unseemly products or services. So, for example, in a recent case, ToysRUs successfully brought a tarnishment claim against adultsrus.com, a pornographic web-site. Toys “R” Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. Oct. 29, 1996).
If Audi was responsible for the ad, placing it on Reddit and explicitly not taking credit, it was an act of genius. In the opposing scenario, the ad is an example of fan fiction at its greatest. Audi gets publicity in either case, even if its marketing team has been criticized for missing a real-time marketing opportunity; many people are calling on the company to employ the creative behind the ad. It certainly wouldn’t be the first time a creative job seeker lands a job.
Another, smaller company, Planet Fitness, adeptly used the Sochi ring fail to its advantage:
— Planet Fitness (@PlanetFitness) February 7, 2014
Brands should always consider how they can use real-time marketing to their advantage, keeping in mind that this entails heightened sensitivity as well as marketing prowess. Oreo’s “You Can Still Dunk in the Dark” tweet during the 2013 Super Bowl is a canny example.
Power out? No problem. pic.twitter.com/dnQ7pOgC
— Oreo Cookie (@Oreo) February 4, 2013
According to our sister site PRNewser, the agency behind the tweet was able to get it up fast because “we had a mission control set up at our office with the brand and 360i,” said president of 360i Sarah Hofstetter. “When the blackout happened, the team looked at it as an opportunity… Because the brand team was there, it was easy to get approvals and get it up in minutes.” Several other companies followed suit but were not as successful as Oreo. It’s speedy advert has been retweeted over 15,000 times and earned the approval of the Twittersphere.