> "Welcome. You were probably looking for www.cocacola.com . But, 2 out
> of 3 people in a blind taste test preferred the refreshing taste of
> Pepsi. Try the choice of the New Generation at www.pepsi.com and get a
> free coupon to save $1 on your next purchase."
>
> Fair use?
(The following is a discussion, not a legal opinion)
In the United States the purpose of trade/servicemarks is to allow buyers
of goods and services to distinguish and identify between offered products
and services. In other words, the primary goal of marks is nominative and
for the benefit of the buyer. Any benefit to seller is merely incidental.
And the reason that trademark law allows buyers to identify and
distinguish among goods and services is not always to identify and
distinguish the "good" products but also to be able to identify the bad
ones.
Trademark law does not require that a trademark be used in a way that
conveys only a positive message about a good or service.
Thus, it has always been my opinion that it is proper for a potential
buyer, or even an observer, to use a mark in a way that clearly identifies
good or service and distinguishes it from others even if that use is
negative.
Thus, for example, it is my opinion that it is a proper nominative use of
a trademark to utter that trademark in conjunction with an opinion
regarding that good or service.
Thus, in my opinion, I might properly use the trademark "Firestone" to
utter an opinon that "Firestone tires go boom", or publish a website under
the domain name "firestone-tires-go-boom.ewe".
That's really not much different than saying to a friend the opinion
"don't buy any of those failure-prone Firestone's; get Michelins"
The free flow of knowlege, or opinions, about the relative quality of
offered goods and services is a necessary part of a competitive economic
system.
And how can such knowlege or opinions flow if the specific goods and
services not be precisely identified and distinguished by use of the
trade and servie marks?
The answer is that it can not; it is a necessary component of a free
marketplace that buyers be able to utter trademarks, even in conjunction
with negative messages.
There certainly are limits, which like all of this stuff will vary from
nation to nation - For example in the US one can not usually engage in
defamatory conduct.
And your example, in which a mark is used by a competitor strikes me as
somewhat suspect. The reasons that tickle my suspicion are:
a) the potential customer uttered the coco-cola name and that utterence
was in a way usurped before it was consumated with a response from the
target that was clearly identified and distinguished by the potential
customer.
b) That usurpation of the communication was by a not-disinterested
competitor who was using the the coca-cola mark to to facilitate the
potential customer's expressed desire but rather to frustrate it.
(Again, all of this is off-the-cuff discussion of an academic issue; it is
not a legal opinion.)
--karl--