CAMPAIGN #1: COMPARISONS.
Do we have data to suggest that our statement is true? How can we demonstrate that our product tastes better than Smirnoff (or any other brand)? Being able to substantiate this claim (e.g., by being able to show the results of blind taste tests) is going to be critical if we’re going to pass our obligation to be truthful. Nevertheless, even if the ad is truthful, are we being a jerk? The ad is derogatory of a competitor’s product—a violation of TTB rules. Furthermore, a huge multi-national conglomerate with an army of lawyers owns the competitor we’re targeting. Do we want that fight? It’s probably not the best choice for our marketing resources.
CAMPAIGN #2: BIG MAN ON CAMPUS. Sex sells—we see that every day in our media. Few among us have not found ourselves being targeted (perhaps even tempted) by ads suggesting that by using a particular product, we will become irresistible to the objects of our sexual desires. This campaign fits right into that model. But, is it appropriate? By marketing exclusively on college campuses, we are likely running afoul of the Code—as well as the laws of those states that prohibit the on-campus advertisement of spirits. Not to mention, the suggestion that by drinking our product we will achieve our sexual aims is fairly overt, meaning we’re probably violating our rule to abstain from encouraging irresponsible consumption.
CAMPAIGN #3: HELLO, NURSE. There is nothing particularly graphic, indecent or obscene about the ad campaign—so if we can convince ourselves that the ads comply with general standards of good taste perhaps we can convince ourselves we’re not being a jerk by running them. Having what appears to be a medical professional endorse our product? That’s problematic. And the tagline itself—although tongue-in-cheek—nevertheless appears to suggest a correlation between drinking our vodka and better health, which probably violates both the rule to be truthful as well as the rule not to encourage irresponsible consumption. This one isn’t going to work.
CAMPAIGN #4: “THE WORLD’S BEST TASTING VODKA.” This line has a certain amount of appeal. While it might be dismissed as simple puffery or opinion, the boast could be substantiated (and the line viewed as truthful) if your vodka has received a gold medal or two in international competitions. There’s nothing in the tagline (or the way you intend to use it) that seems to encourage irresponsible
consumption. It also isn’t overtly derogatory to any competitor because it doesn’t mention any by name, so it might just pass the don’t be a jerk test. Unfortunately, it really doesn’t pass that test, though. Because part of not being a jerk means ensuring you’re not stealing someone else’s good idea. The good folks at Grey Goose (owned by Bacardi Global Brands since 2004) registered the tagline as a trademark in 2007. So, while hitching your marketing wagon to this particular line means you’ll be in good company, it also means you’re likely to get sued for trademark infringement.
CAMPAIGN #5: BLUNT TRAUMA.
By all objective measures, consumption of your vodka (in reasonable amounts) is indeed probably better than most medical maladies. So, if you were to advertise your vodka as, for example, “better than a punch in the gut,” or “better than a kick in the head,” it will probably pass the test of being truthful. Assuming that the print ads you plan to run will be in magazines with an audience that is predominantly of legal-purchase age, this one also probably passes the test of not encouraging irresponsible consumption. However, note that you’ll want to avoid versions of the tagline that seem to suggest that your vodka is a treatment for whatever medical malady you might pick. “Better than a migraine” could be interpreted to mean that you’re suggesting the use of your product as a treatment—probably best to stay away from that. The campaign isn’t derogatory of competitors, doesn’t appear to violate principles of good taste, isn’t gratuitously sexual or obscene and generally doesn’t appear to violate our prohibition on jerk-like behavior. It appears to meet our three rules. This one—with each individual installment carefully vetted—might actually meet our tests. Now, we just have to see whether it sells your product.
Brian B. DeFoe is a business lawyer at Lane Powell, where he focuses his practice on helping companies in the customer-facing industries of hospitality and retail. Brian can be reached at firstname.lastname@example.org, via phone at (206) 223-7948, or on Twitter @BrianBDeFoe. Visit www.hoochlaw.com for more thoughts on spirits and the laws that govern them. This is intended to be a source of general information, not an opinion or legal advice on any specific situation, and does not create an attorneyclient relationship with our readers.
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