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I'm working on a project and the best way I've found to sum it up, essentially my elevator pitch, is by saying:

It's like X for Y.

Can I use the brand in this context as the tag line for my project?

To use a specific example, could the (now defunct) app Texture, which allowed users to access hundreds of magazines, have advertised itself with the tagline:

Like Netflix for magazines.

From reading on the topic, it seems like there are four categories for using another brand in an ad:

  • Comparative
  • Tarnishment
  • Parody
  • Fair Use

Tarnishment & Parody: I think it's safe to say the example above is not tarnishment or parody.

Comparative: Comparative seems to center around doing some sort of actual comparison with a competitor, like comparing Coke to Pepsi.

Fair Use: It seems like the statement above would fall under fair use, but I'm unclear if it's acceptable fair use. I don't think anyone would mistake the statement as implying in any way that Netflix endorses Texture, but the comparison does make use of the value of the Netflix brand (namely, it being a comprehensive repository of an entertainment product).

  • This is the heart of almost all elevator pitches. – George White Aug 7 at 3:01
  • I like the Coke vs Pepsi comparison because they've been making commercials about each other for years. I found this if it helps, i'll try to give to a real answer in a little bit. – User37849012643 Aug 7 at 3:17
  • @GeorgeWhite that makes sense. I’ve added a sentence to clarify that I am asking about using the elevator pitch as an official tag line for the project. – Ryan Aug 7 at 4:37
  • @StephanS thanks for the link. That example appears to fall under the comparative category which I don’t think applies to my case because I’m not making any statement, positive or negative, about X (in the context of “It’s like X for Y”). – Ryan Aug 7 at 4:40
  • @Ryan using "like", or "as" to decribe something is by it's nature a comparative statment. – User37849012643 Aug 24 at 5:33
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+50

You're approaching this from the wrong angle. This is not a false advertisement claim issue, this is a trademark violation.

Pepsi can mention Coke in advertisements because that is nominative use. They name Coke because that is exactly what they mean.

The fact that you describe is as "like Netflix " directly means that it is not actually Netflix. You are not using Netflix in a direct nominative sense. "Better than netflix" would be nominative.

Do you have other grounds on which you can use the trademark? I cant see one here.

  • The link I shared mentions, "If your store is next to a McDonald’s restaurant, your advertisement may recite your location as next to McDonald’s. The fair use defense is allowed when reference to the other’s brand name is used “fairly and in good faith” only to describe the product, and only when the infringing mark is not used as a trademark." It seems like "Like Netflix for magazines." would also fall under fair use, would it not? Also, would removing "like" meet the bar for nominative use? So it would simply be, "Netflix for magazines." or "The Netflix for magazines." – Ryan Aug 21 at 1:13
  • @ryan: "next to Mcdonalds " is again nominative use. You mean exactly that. Dont get hung up on "like". It's not the word but the comparison which sinks your idea. – MSalters Aug 21 at 8:10
  • "The Netflix for magazines" would be a problem, because you'd be diluting the mark by making it generic. – Wm Wolff - Law Exam Guides Aug 25 at 16:13
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Yes. A company can use another brand's name when describing their product.

There's a Cadillac Coffee Company (allegedly founded 1888) https://cadillaccoffee.com having nothing to do with GM which bought Cadillac which was founded in 1902.

It might be difficult for someone to sue for trademark infringement given that no one could definitively identify itself as the Cadillac to which you're referring.

Trademark protection applies only to the product category specified in the trademark application. So, you could found a company Cogsley Cadillac Cogs for the product category cogs and no one could stop you from using the name Cadillac.

Mostly "the Cadillac of" but the upenn reference

PJ Clarke's Cadillac of Cheeseburgers http://pjclarkes.com/p-j-clarkes-bacon-cheeseburger-still-cadillac-cheeseburgers/

There's a reference from 1949 in a book How to Cut Production Costs

https://books.google.com/books?id=oSQ1AAAAMAAJ&q=%22related+to+full-fledged+statistical+control%22&dq=%22related+to+full-fledged+statistical+control%22&hl=en&sa=X&ved=0ahUKEwiV-P_Ptp7kAhWl1lkKHV8xCkIQ6AEIKDAA

"It cannot do all that the 'Cadillac' of quality control can do."

There's a reference from 1968

"Creeping Bentgrass (Agrostis palustris) … used on golf greens, is the "Cadillac" of grasses. – Circular, Issues 424-441, Hawaii Cooperative Extension Service<, 1968" https://languagelog.ldc.upenn.edu/nll/?p=1877

Urban Dictionary

Here we have "the Cadillac of" to mean the best of the best. something that differentiates itself with superior quality. https://www.urbandictionary.com/define.php?term=the%20cadillac%20of

Movie Get Shorty

The only place I recall hearing this was in the movie Get Shorty. When Travolta goes to the car rental location, they give him a minivan. He complains that he had reserved a Cadillac. And the clerk says, "It's the Cadillac of minivans."

  • "The cadillac of"... Urbandict is not a law reference. Languagelog discusses how it came to be, and is not a legal reference. The book reference is not about law either, it is talking about quality control and how Eison GE is different from somethign in the same way how Ford was to Cadillac: they test not all cars like they do at Cadillac (nominative use!) but still achieve good enough results that their quality was increased. – Trish Aug 25 at 16:55
  • Also, none of this seem to be advertising prose. – MSalters Aug 25 at 17:24
  • @Trish Lawyers don't limit their sources to statutes and cases. Especially in trademark law. I'm not trying to be rude or anything. I'm seriously curious -- b/c I don't want to make a fool out of myself (any more than I already do) by saying something to someone who knows more about it than I do. – Wm Wolff - Law Exam Guides Aug 26 at 11:09

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