Few things make less sense than companies who file trademark infringement suits based on use of a trademark to compare one product or service to another. Case in point – H&R Block sued Intuit for using H&R Block’s name in this commercial. As expected, the court gave no consideration to H&R’s claims that by allowing its name to appear on a bar graph comparing the respective companies’ services, Intuit infringed H&R’s trademark. H&R Block’s lawyers could use a refresher course in basic trademark law.
Simply stated, infringement occurs when one company uses a mark on a good or service that is so similar in its appearance to a second company’s mark that a consumer would likely be confused as to the source of the good or service. When a competitor’s mark is used to compare the features or quality of a company’s goods or services to the competitor’s, not only are consumers not confused, but it is a fair use of the mark.
For those of us old enough to remember the soda commercials from the late 70’s and early 80’s like the Pepsi Challenge, this makes perfect sense.
Coca Cola’s logo and name is used continuously throughout the commercial. Was Coke upset about its trademark being used in a commercial to promote Pepsi? I’m sure they were. And if the results of the Pepsi Challenge were false, they might have a separate claim for false advertising. But as far as the trademark issue is concerned, who in their right mind would ever watch that commercial and think that Coke is somehow related to Pepsi or that their respective products originated from the same source.
Basically, if you use a competitor’s trademark in the following manner – “Our product is better than <insert competitor’s company name or mark>’s product” you are within your right to do so as long it stays within the realm of comparative advertising.