Vacuum Wars: On-Product Comparative Ads?

When can a brand owner lawfully use a competitor’s trademark on the brand owner’s product?

Over the years, we’ve lifted away a lot of dust on the hairy subjects of classic trademark fair use, nominative fair use, and comparative advertising, especially in the context of billboard ads.

It isn’t every day we see comparative billboard ads actually affixed to a product in question, so I can’t resist sharing this vacuum cleaner canister that captures all of these legal allergens at once:

For those unfamilar with the fierce competition between the Shark and Dyson vacuum brands, above is a cropped photo of a Shark Lift-Away canister vacuum, from my home closet.

As you can see, the label affixed to the canister portion of the vacuum actually refers to the competing Dyson brand twice. Just imagine what our friend James Mahoney might be thinking.

Why would the leading household vacuum cleaner brand — Shark — stoop to give its competitor Dyson free mentions (albeit negative) and publicity? Isn’t that kind of like punching down?

Actually, I’m not sure whether Shark had yet surpassed Dyson as market leader, when the canister left the store and entered our closet, so the above label might have been a punch up?

And, if comparative advertising induces sales, why does someone who already purchased the product need more reminders — with each use — that Dyson sucks, in more ways than one?

Turns out, the label shown above, as we now know, is fairly easily removed, so I suppose the joke is really on us, for leaving this comparative advertising on the product for more than a long while.

One of the dangers in affixing comparative advertising claims or content to the product itself may be, over time the claim might lose its original truth; perhaps that’s why the label is removable?

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