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).

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  • 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. – StephanS 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. – StephanS 10 hours ago

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

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