This is the Brand Your Brand Could Smell Like

At the IP Whiteboard, sometimes we like to take a break from our busy legal lives and admire the brilliance of a great marketing campaign.  Most recently the team has been amazed by the creativity and sense of fun exuded from the series of commercials from Old Spice, the maker of antiperspirant, deodorant, body wash and other scent enhancing products for men. Most of the commercials, featuring the tag line “The Man Your Man Could Smell Like” are viewable on YouTube at http://www.youtube.com/user/OldSpice and on the company’s website at http://www.oldspice.com/videos/.
 
What makes this marketing campaign more than just a series of clever commercials is that the star of the advertisements, “Old Spice Man” (played by Isaiah Mustafa, a former National Football League player), has launched a website and Twitter feed where people can ask him questions.  He has prepared a series of individualised video responses to many of the questions asked of him.  My favourite response is to political correspondent and former presidential adviser George Stephanopoulos at
http://www.youtube.com/user/OldSpice#p/a/484F058C3EAF7FA6/1/J8Bli13rO9A
 
Of course, between thinking of questions to ask Old Spice Man over Twitter, we at the IP Whiteboard have considered the legal issues that may arise out of this fabulously successful campaign. 
 
If Mallesons Stephen Jaques started a similar “These are the Solicitors Your Company Could Have” campaign, Old Spice would have limited legal recourse to protect its rights. It’s unlikely that Old Spice could protect the scheme by which Twitter, Facebook and individual responses have been integrated to generate a viral hit.   Perhaps it could seek a business method patent in this context, but we have our doubts. 
 
Copyright provides a possible head of claim in the case of actual copying.  In the recent case of Budget Eyewear Australia Pty Limited v Specsavers Pty Ltd [2010] FCA 507, the Federal Court granted an interlocutory injunction against Specsavers after the Court found that Budget had established a prima facie case that Specsavers had taken a substantial part of a Budget Eyewear advertisement offering to replace broken Specsavers glasses.  In this case Specsavers had access to the Budget Eyewear advertisement, copied it, then changed some of the words to synonyms. This was insufficient to avoid a prima facie finding of infringement which, on the balance of convenience,  justified an interlocutory injunction in favour of Budget Eyewear as copyright owner. 
 
In Australia, we also have section 52 of the Trade Practices Act 1974 (Cth), which generally prohibits conduct which is “likely” to mislead or deceive.  This has enabled brand owners over the years to stop advertising campaigns which, by sailing close to the wind, create in the minds of consumers an authorised “association” between the offending advertisement, and the original advertisement or brand from which it is derived.
 
The moral of the story is that sometimes, with advertising campaigns, lightning only strikes once, and that attempts to copy a successful campaign can be legally risky…and that your man should smell like former NFL Player Isaiah Mustafa.