You are now entering Ad Space, a realm of commercials, brought before us so we might examine how they work, and discuss why we both love and hate them so. So it is written …
The Product:
Morgan & Morgan law firm
The Promotion:
The Pitch:
If we can take on Disney, we can take on anyone.
As many of you know, a couple years ago the copyright on Steamboat Willie, the very first Mickey Mouse cartoon, expired in the United States. With one of the most recognizable mascots in the world now in the public domain, many people rushed to produce movies, video games, comic strips, and other media featuring the famous mouse.
However, using Mickey Mouse in advertising is a trickier proposition. While the character is no longer copyrighted, they are still a registered trademark of the Disney corporation. That means …
Okay, it’s like this. Y’know the Amazons of Greek mythology? No one holds a copyright on them, or ever has, since they predate the existence of copyright laws by a couple millennia. However, if I sell cheap, shoddy e-readers with the word “Amazon” on the packaging, then the Amazon corporation can justifiably claim that I’m tricking the public into thinking my e-readers were made by them and are a sister product to the Kindle. That’s the sort of thing trademark laws are designed to prevent – the mythological Amazons may not be copyrighted, but the word “Amazon” is trademarked, and can’t be used in marketing in ways that’d cause that sort of confusion.
That’d be why, in all those Steamboat Willie derivatives I linked to above, none of them actually use the words “Mickey Mouse” in their title. They can use the character all they want within the movie/game/book/whatever, but they can’t market it as being a Mickey Mouse product. Businesses who have neglected this distinction have been shut down hard by Disney’s infamously aggressive legal team.
Which is what makes this ad so noteworthy. Since a commercial is a piece of marketing, it’d seem impossible to put Mickey Mouse in it without running afoul of trademark law. But Morgan & Morgan had two counters to this.
The first is that trademark protection only prevents competing businesses from using your registered trademark. That’s why Apple, Inc. (the tech company), Apple Bank, and Apple Leisure Group can all co-exist without stepping on each others’ trademarks: they’re all providing different products and services, so there’s no risk of one of them drawing in customers who would have otherwise gone to the others. And since Disney doesn’t sell legal services, an ad for a law firm doesn’t compete with them in any way.
The other counter, obviously, is that the ad itself quite prominently announces “this Morgan video was not approved, authorized, or endorsed by Disney”.
Despite these legal protections, the ad did still lead to a lawsuit … but not the sort you might expect.
Disney didn’t sue Morgan & Morgan. No, Morgan & Morgan sued Disney.
Why? Well, before airing the ad, Morgan & Morgan sent a copy of it to Disney, with a letter asking for affirmation that the company didn’t consider this a breach of trademark or other intellectual property laws, and would not take legal action over the ad. Disney’s response was … no response. Oh, they sent a letter back, but only to say, essentially, “We ain’t promising jack. It’s not our job to give you legal advice. You want to air the ad, you gotta make that call yourself, pansies.”
Only more politely worded … I assume.
Anyway, since Morgan & Morgan is a bunch of lawyers, their response, naturally, was to sue. Their claim was that, even if Disney hasn’t directly threatened legal action, their reputation for being ultra-litigious is so severe, it counts as a passive threat, and without assurance that Disney doesn’t intend to sue, companies like Morgan & Morgan will be intimidated into compliance. Basically, they wanted the courts to force Disney to make a legally binding statement that they would not sue over this ad.
Now, my legal knowledge is strictly amateur, but this lawsuit seems pretty weak. Arguing that a company doing nothing counts as an intimidation tactic, and that they have an obligation to tell you in advance what legal actions they may or may not take … doesn’t seem to hold much water.
That may be why Morgan & Morgan quietly dismissed the suit a few months later, without it ever reaching a courtroom. But then, I suspect winning this lawsuit was never the goal – I think it was all part of their marketing campaign.
A big name law firm suing Disney? That gets them in the news and on social media, draws more eyes to the commercial – a commercial which loudly announces that it was made in defiance of the Disney corporation. And as Morgan & Morgan said, Disney’s lawyers have a reputation for coming down hard on anyone who even remotely threatens their intellectual property. So this commercial, and the lawsuit that followed? It’s announcing to the world that Morgan & Morgan ain’t afraid of Walt Disney’s legal goons – and if this firm can take on the House of Mouse, they must be some damn good lawyers, right?
It’s kinda genius.