Anheuser-Busch and William Grant & Sons are reacting to the inclusion of their brands in the hit movie “Flight” starring Denzel Washington, which was released in theatres in early November and earned $25 million dollars in its debut weekend.
While product placements are a popular way for brands to advertise their products and services, what happens when that product integration is not authorized and not favourable to the brand?
Authorized product placements are usually subject to a product placement agreement that will dictate the terms of the integration including the manner in which the product may (or may not) be used in the film. This helps protect brands against improper use and unappealing depictions. However, producers may include products without seeking permission from the brand and thus solely control the manner in which the product is integrated. Where the integration is neutral or favourable there is typically no objection by the brand.
Flight is about a highly functioning alcoholic pilot (Washington) who drinks excessive amounts of alcohol throughout the film including, a scene where Washington’s character is shown consuming a beer while behind the wheel. Neither Anheuser-Busch (the maker of Budweiser beer), nor William Grant & Sons (the distributor of Stolichnaya vodka), was approached for permission to include their respective products in the film and neither of them took kindly to the manner in which those products were integrated. In fact, it is clear that neither of them would have consented to such use (or misuse) of their products as portrayed in the film.
Rob McCarthy, VP of Budweiser noted in a statement to the Associated Press: “We would never condone the misuse of our products, and have a long history of promoting responsible drinking and preventing drunk driving. It is disappointing that…Paramount chose to use one of our brands in this manner”.
James Curich, a spokesman for Stolichnaya said that the company has a strict code for how the vodka is to be portrayed in films. “Considering the subject matter of this film, it is not something in which we would have participated”.
Both brands have requested that their trade-marks be obscured or removed from current and future copies and adaptations of the film.
Legally speaking, (looking specifically at trade-marks law), brands may attempt to seek protection via the Trade-marks Act (the “Act”). Section 20(1) states that the right of a registered trade-mark owner to its exclusive use shall be deemed to be infringed by a person who “sells, distributes or advertises wares or services in association with a confusing trade-mark or trade-name”. As the producer is not selling, distributing or advertising wares or services in connection with a confusing trade-mark, this provision would not likely prevent the unauthorized inclusion of a branded product in a film. Section 22(1) of the Act prohibits people from using a trade-mark registered by another person “in a manner that is likely to have the effect of depreciating the value of the goodwill” attached to the trade-mark. While it is arguable that a negative product inclusion may have the effect of depreciating the good will of a brand, the definition of “use” in connection with “wares” as set out in Section 4 of the Act requires that the trade-mark be marked on the wares themselves or on the packages in which they are distributed. Thus, the inclusion of a product placement in a film would likely fall outside this definition of use. Therefore, it appears that the options to prevent or enforce removal of an unauthorized product placement under Canadian trade-mark law may be limited. Accordingly, the best approach may be to follow the actions of Budweiser and Stolichnaya by publicly voicing their disapproval and requesting removal of the products or their marks from the film.