Failed Brands Try to Look Like the Cool Kids: Is This Infringement?

By Dave Wieneke | in Advertising, Best of / fresh takes, Copyright Law, Trademark law | 7 Aug 2008 | No Comments

Both Joe Camel and JC Penney have tried to reverse their fortunes by attempting to look like other brands that have seen greater success in recent years. But there’s a gossamer-thin line between imitation, homage and infringement.

Few cartoon mascots are more hated than Joe Camel, who Reason online named the “most vilified cartoon character in history.” (This distinction could be a topic for endless later posts.) The dig against Joe Camel was that he seemed to appeal to kids. The Madison Avenue-airbrushed Camel made a soft target for activists to parody and rail against as inauthentic propaganda from the manipulative tobacco-industrial complex. Activists painted tobacco firms as essentially the faceless bad guys from The X-Files who could be defeated by the truth they sought to suppress. And it worked.

Around the same time, another animal logo—John Deere—started popping up on the heads of Hollywood stars and teenagers around the world. I grew up in Deere’s headquarter city, Moline, where I was the president of the “we’re leaving here” club in high school. Imagine my shock on seeing my soccer-playing, teenage Brazilian neighbor wearing Deere Gear to look cool.  This trend even inspired a John Deere farm video game, where you can shovel digital poop just like a real farmer.

This trend apparently wasn’t lost on R.J. Reynolds. Their Camel was reviled in my teens as inauthentic BS, but the Deere was everything that’s good in the Heartland.

JC Penney Tries to Elbow its Way into The Breakfast Club
Not only am I revisiting teenage trauma from living in the shadow of John Deere, but I and all my nerd friends back in the ’80s wore clothing from JC Penney. MoJo Nixon said there was no Elvis in Michael J. Fox; well there was no Elvis in JC Penney back then either. It was uninspired clothing that middle-American parents could feel good about their Reagan-era kids wearing.

One of the best and brightest who reads this blog, Eli, saw JC Penney’s ad, which mimics scenes from The Breakfast Club,with characters sporting the store’s threads . Everyone I’ve shown this to shrieks, “I love The Breakfast Club! That’s so cool,” and then observes that JC Penney is anathema to everything they like about this seminal ’80s movie.

Perhaps writer Amy Martin says it best: “Memo to corporate America: Please stop co-opting my childhood to sell your stupid crap.” There is some irony that documentary filmmakers must clear songs playing incidentally in the background of scenes, as they must with exterior shots of some buildings and sculptures. But Penney’s ad is all but a derivative work from the film, intended to  draw on the film’s good will, much as the JR Reynolds’ logo draws on John Deere’s authenticity. Homage has its limits.

Are these cultural references or infringement? Courts decide such questions, and famous brands do have broad protections. But, in my opinion it may be more imitation than infringement. Still its the kind of imitation that can’t please John Hughes or John Deere.

What do you think?  Is there copyright or trademark infringement here? And is either brand helped, or hurt, by these associations?