Denzel Washington has received critical acclaim for his portrayal of an alcoholic pilot in Flight (to be released in the UK in February). But the film has been less well received by AB InBev, the maker of Budweiser. AB has taken issue with the film’s production company, Paramount, about the ‘unauthorised’ appearance of Budweiser and asked it to remove images of the lager from the film.
It’s easy to understand AB’s concerns. Brand image is central to the success of almost any product and companies frequently pay significant sums for their products to appear in films and on TV. If you accept that product placement is an effective advertising tool, then it is difficult to deny the potentially damaging effects of products appearing in less positive settings. This is especially true in a sensitive market like alcohol.
The problem for AB is that while it’s now common for companies to include product placement in their campaigns, production companies are not obliged to seek brand owners’ agreement to their products being included.
AB may well look towards its trademark rights to support any complaint against Paramount. However, companies generally use trademark rights to stop competitors trading under confusingly similar brands, and so it’s not obvious how AB could claim its rights have been infringed.
It might try to argue that the product’s appearance in the film damages its brand reputation, but Paramount could rebut this by arguing that Budweiser does not play a central enough role in the film to infringe. There is also a technical argument available to Paramount, that AB exhausted its rights by “selling” the products to it in the first place.
AB is no stranger to asserting its trademark rights - it has spent many years in a dispute with a Czech brewery over the ownership of the Budweiser name. If it does pursue this, the courts will need to decide if trademark law is really intended to prevent this kind of activity, how this impacts on freedom of expression and whether the film industry’s willingness to accept money for product placements ultimately gives AB the moral high ground.
Imogen Wiseman is a partner at patent and trademark attorneys, Cleveland IP