After observing the Super Bowl trademark be subjected to potential misuse and misrepresentation by advertisers, we decided to look into the paid search surrounding another monumental event: the Oscars.
On Sunday Night, about 40 million Americans watched the awards show—a little over a third of the Super Bowl’s viewership—as did millions of others around the world. That’s a pretty good indication that the event was relatively buzzworthy. And when something is buzzworthy, it’s a wave that many advertisers will want to ride.
So we looked into the Oscars trademark policy. Luckily, the Academy’s copyright and trademark policy was relatively easy to find on their site. Here’s the most pertinent clause for our purposes:
3. “OSCAR®,” “OSCARS®,” “ACADEMY AWARD®,” “ACADEMY AWARDS®,” “OSCAR NIGHT®,” “A.M.P.A.S.®” and the “Oscar” design mark are trademarks and service marks of the Academy of Motion Picture Arts and Sciences, and may not be used except in accordance with these regulations or under a special written license from the Academy.
Any use of the marks “OSCAR®,” “OSCARS®,” “ACADEMY AWARD®,” “ACADEMY AWARDS®,” “OSCAR NIGHT®,” “A.M.P.A.S.®” and the “Oscar” design mark must include notice of trademark and service mark registration and credit the Academy as the owner of said marks (“®”), except as provided in section 20 below.
Section 20 goes on to describe editorial use, such as on news sites and this blog.
Interestingly, although the Academy is somewhat lenient as far as who they allow to use their trademarked terms (anyone can if they follow the policy’s stipulations), they’re very strict about associating the registered trademark symbol (®) with those terms. That gave us a perfect set of criteria to look for in paid search.
So We Developed a Monitoring Policy
After selecting a set of keywords related to the Oscars trademark terms, we let the results pour in. In just five short days, from the Thursday before the show to the Monday after (2/21 through 2/25), we tallied 730 unique ads. Those ads appeared a total of 5,696 times on our searches alone.
Searches were conducted using 18 total keywords—the same set being used continuously throughout our monitoring. Our policy searched the following engines: Google, Bing, Yahoo, AOL, Ask and Google Mobile.
Our Findings: Mass Disregard for the Academy’s Rules?
Many brands chose to leverage the event’s popularity for their marketing efforts. But of those brands, very few seemed to perfectly adhere to the Academy’s policy. The most common deviation: not placing the registered trademark symbol (®) after trademarked terms.
Almost none of the advertisers uncovered by our monitoring seemed to be in compliance with this stipulation. In fact, we only saw two examples of total compliance: Apple and Dolby. Everything else looked like this:
As you can see from this example on AOL, all five of the advertisers for this search used the Oscars trademark in some form or another. None of them used the registered trademark symbol. Furthermore, none of them seem to have any sort of sponsoring relationship with the awards.
It remains possible that the Academy granted special privileges to certain advertisers. But given the range we see in this crop of ads alone, that’s unlikely to be true in every case. Perhaps the Academy thought Fandango was relevant enough to earn permission, but we doubt that they’d give special treatment to search arbitrage (which occurs multiple times above).
What About Official Partners?
After seeing potential violations by these unaffiliated advertisers, we wondered about official partners. Would they exhibit the same behaviors? The results we found were interesting:
Samsung, the only advertiser we found to claim official sponsor status, follows the same pattern set by all the other advertisers. No registered trademark symbol. Even ABC—with exclusive rights to the broadcast—doesn’t include it in their ad.
Of course, official status can often bring special permissions with it—which would nullify any violations by the advertisers. Such an agreement wouldn’t be surprising in this case. But unfortunately, we can’t know without getting some privileged information from the advertisers or the Academy.
More Clear-Cut Cases
There’s one asset that the Academy may consider even more valuable than any of its trademarked terms: its award statuette. In its policy, the Academy specifies that it “has the sole and exclusive right to reproduce, manufacture, copy, sell, display images of and publish” the statuette.
Clearly, it’s not beneficial to the Academy when manufacturers pass off their likenesses as official replicas. It can easily dilute the brand—or at least reflect on it poorly. But that’s exactly what we found some advertisers doing:
The awards actually being sold here are probably legally distinct from the copyrighted and trademarked statuette. But to pretend that a knockoff is in fact a genuine replica would almost surely be a violation. These sellers would clearly be attempting to profit from a trademark they don’t own and don’t have the right to use.
Time to Update the Policy?
As we observed in our Super Bowl trademark post, it can be difficult for organizations to respond to the use of their trademarks in different advertising media. Especially when an organization is more accustomed to being featured in traditional advertising on television and in print.
Interestingly, much of the Academy’s fine print governs the use of statuette photography, symbology and other visual imagery. While that’s definitely an important aspect of the trademark, the policy might be lacking some additional clarity when it comes to text-based media like search ads. The resulting vagueness probably contributes to the results we found above.
In certain areas of the policy, such as section #4, the Academy seems to hint at such regulations. But they place their emphasis on symbols (statuette, plaques, etc.) rather than trademarked terms. At the very least, these sections of the policy seem worthy of revisiting.
