"What If I Told You None Of It Was Accidental?" Cetaphil's "Mastermind" Marketing Tactics Balance Taylor Swift Imagery And IP Rights

Brooks Kushman


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The Cetaphil #GameTimeGlow commercial, aired before the 2024 Super Bowl, has garnered attention for its portrayal of a father and daughter bonding over football, indirectly tied to Taylor Swift's appearances at Kansas City Chiefs games.
United States Intellectual Property
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The Cetaphil #GameTimeGlow commercial, aired before the 2024 Super Bowl, has garnered attention for its portrayal of a father and daughter bonding over football, indirectly tied to Taylor Swift's appearances at Kansas City Chiefs games. Without explicitly naming Swift, the ad integrates Swift-related symbols, such as friendship bracelets, red football jerseys, and the numbers 13 and 89, into its narrative. For those not in the know, Swift's fans started a trend of making, wearing, and trading friendship bracelets at the star's "Eras Tour." Swift's fourth studio album is titled "Red," and the color red is often a theme with the pop star. The numbers 13 and 89 also have meaning to Swift's fan base—Swift's lucky number is 13 and her fifth studio album is entitled "1989." Incidentally, to some viewers, this may explain why the jersey did not display the number 87. The commercial is the story of a daughter gaining interest in football after recognizing "the most famous fan at the game" on television (a subjective viewpoint, but the imagery implies who the daughter believes this to be), leading to shared moments with her father, highlighted by matching jerseys and friendship bracelets. The commercial concludes by celebrating this new way for fathers and daughters to connect, mentioning the actors are a real-life father and daughter from New York. While praised by Swift's fans for capturing a genuine bond, the ad also sparks questions about the nod to the iconic pop star without direct references, blending emotional appeal with subtle celebrity association.

Crafting a commercial that cleverly alludes to a celebrity without infringing on their intellectual property rights is no small feat. A legal team was undoubtedly involved in this lofty task and had to navigate a complex legal landscape, balancing the creative elements that hint at Swift with the strictures of the law to ensure that the ad could resonate with Swift's fans and the broader public without crossing the line into rights violations.

The commercial sets the stage for an analysis of the legal strategies employed to avoid just a few of the claims that might have been possible had care not been taken, assuming Swift's endorsement or consent was not received.

False Endorsement Under the Lanham Act

The Lanham Act protects against misleading impressions of endorsement by celebrities or other trademark holders. To navigate around this, references were employed that are evocative of Swift (e.g., the red football jerseys, friendship bracelets, and the numbers 13 and 89) but avoided direct mentions or images of Swift herself. This approach is predicated on the doctrine that a false endorsement claim requires a clear and misleading use of a protected identity, something the ad circumvents by employing elements associated with Swift in a manner that suggests her influence without claiming endorsement. Interestingly, this tactic mirrors Swift's own practice of embedding hidden messages (dubbed "Easter eggs") into her works for her fans, adding a layer of engagement and insider knowledge to the viewing experience without crossing legal boundaries.

Misappropriation of Name or Likeness

Tort law prohibits the unauthorized commercial use of an individual's "likeness" or persona. Cetaphil's strategy appears to leverage the legal threshold for misappropriation, which necessitates a more direct use of someone's name or likeness for commercial gain. By utilizing only symbolic, indirect references to Swift, such as the number 13 and generic-looking friendship bracelets, rather than her name, image, or voice, the ad positions these elements within a cultural homage rather than a commercial exploitation of Swift's persona.

Trademark Infringement of Taylor Swift's Registered "1989" Trademarks

Analyzing the potential for trademark infringement involves evaluating the likelihood of confusion among consumers with respect to the similarity of the trademarks and the relatedness of the goods and services they cover. The commercial's use of "89," along with other Swift-associated references, raises questions about its association with Swift's arguably similar "1989" registered trademarks. However, the ad's clever use of "89" in a non-commercial context—placed ornamentally on a football jersey rather than as a direct promotion of goods or services—falls outside the bounds of trademark use. This suggests a legal calculation to ensure that the reference is perceived as thematic or decorative, rather than as a misleading indication of origin or endorsement by Swift.

Trademark Dilution by Blurring

Dilution by blurring refers to the weakening of a famous trademark's distinctiveness through its unauthorized use by others. Cetaphil's ad incorporates Swift-related symbols in a manner that arguably could dilute the distinctiveness of Swift's trademarks, particularly Swift's registered 1989 trademark. The ad navigates potential dilution concerns by leveraging the requirement for the prior mark to be famous—a challenging condition to meet, even for trademarks held by high-profile individuals like Taylor Swift. Furthermore, as noted above, the ad incorporates only the second half of the "1989" trademark and applies it ornamentally to distance itself from direct infringement issues. Generally speaking, the commercial's thematic and indirect approach, emphasizing the cultural phenomenon around Swift rather than her trademarks per se, suggests a nuanced legal strategy aimed at minimizing risks associated with dilution claims. This is further complicated by the need to prove that such usage significantly impairs the mark's distinctiveness, another high bar that the ad navigates with its oblique references.

In sum, Cetaphil's commercial exemplifies a sophisticated legal strategy that engages with the cultural cachet of Taylor Swift while avoiding the legal pitfalls associated with direct trademark infringement, false endorsement, misappropriation, and dilution. This case study underscores the importance of legal foresight and creative strategy in developing advertising content that resonates with popular cultural references without infringing on intellectual property rights. It also serves as a compelling example for attorneys specializing in intellectual property law, highlighting the intricate balance between cultural relevance and legal compliance. The ruling on the field is this was a fair play. But be cautious, one wrong move can be a game changer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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