Can You Use Brand Logos Without Express Consent? A Discussion For Account-Based Marketing Personalizations

13th Aug 2019 –

Brand logos are everywhere. They are on our clothes, in commercials, and even plastered on the sides of buses. 

As consumers, we’re bombarded with branding every day of our lives. But what happens when marketers use those same brand logos without explicit consent to personalize ABM campaigns?

This is a question that came up when we launched our newest A/B testing solution, Deploy.

Deploy makes it easy to personalize website content on the fly. With a few clicks, you can take data from your CRM or lead scoring platform to offer hyper-personalized web experiences.

For example, if at Convert, we had Sony Music on our ABM prospect list, then using Deploy we could personalize our website experience for anyone from Sony Music who landed on our website.

We could use Deploy to show them a personalized welcome message saying:

But can you use other companies’ logos on your website like that? And their names?

The short answer is: Yes, you can.

But we get it.

Using third-party logos and other Intellectual Property (IP) assets can feel risky. After all, no one wants to be a party to unintended infringement cases.

But such limited, non-infringing, and non-commercial use of third-party logos on your website is okay under account-based marketing campaigns. Let’s see how.

What Is Account-based Marketing? And Why (and How) it Uses Third-party Assets Like Logos

Account-based marketing is a way for businesses to win their best accounts.

In account-based marketing, you create a list of target accounts that you’d love to have as your customers.

And as the next step, you create some unique and exclusive marketing collateral and sales messaging for each of these accounts and kickstart your outreach activities.

For example, your social seller will connect with the VP of your target account on LinkedIn and after some warming up will send them a link to your website.

But when this VP of company X lands on your website, they won’t see your generic homepage. Instead, they’ll see a unique website experience personalized exclusively for their company.

Think:

• A background image personalized with Company X’s branding (for instance, using their color scheme)
• A personalized headline copy directly addressing “Company X”
• A personalized welcome chat message saying: “Hey there! Would you like to know we can help Company X…?”

And so on…

Personalization solutions like Deploy can make hundreds of such personalized versions of your regular website pages for each of your target accounts — aka account-based marketing at scale.

Such personalization-at-scale campaigns often use Intellectual Property assets of target accounts, such as logos, names, slogans, etc., to create an individualized experience, allowing elements to speak directly to them in ways subtle and bold.

Note: These personalizations are only displayed to people from the intended target account and no one else.

Let’s now see why targeting your key accounts using their copyrighted or trademarked names and logos doesn’t mean violations and a few best practices to avoid getting into legal problems when using them.

Copyrights & Trademarks: The Two Safeguards for Intellectual Property Assets Such as Logos

When you decide to use a brand’s Intellectual Property assets such as its logo on your website as part of your account-based marketing drives, you have to think about two legal mechanisms that work to protect them:

1. Trademarks
2. Copyrights

Let’s talk about trademarks first.

A trademark is used to protect a “business’s commercial identity” or “brand.”

A logo, phrase, name, slogan, scent, technology, track, lyrics, etc. can all be trademarked assets.

For example, Nike owns the following trademarks:

• The symbol/logo “Swoosh”
• The phrase “Just do it“
• And the brand name “Nike“

Brands trademark such assets so that they can protect their brand identity and stop others from using their or “confusingly similar” assets.

By doing so they also ensure that their brand recognition isn’t diluted as other brands are restricted from using any asset that people have come to recognize and associate exclusively with theirs.

For instance, when California-based Peter Maher and Patricia Hoyt Maher tried to register the trademark “JUST JESU IT” for an athletic apparel brand, the trademark Trial and Appeal Board rejected their application.

When deciding upon such applications, authorities usually consider these three aspects (among other things):

1. whether the opposer’s mark is famous;

2. whether the opposer’s mark became famous prior to the date of the application to register the applicant’s mark; and

3. whether the applicant’s mark is likely to blur the distinctiveness of the opposer’s famous mark.

In this case, Nike’s trademark was obviously famous and had got famous well before the date of application (by the Mahers). Not just that, the Court also noted that blurring could happen:

… [B]lurring occurs when a substantial percentage of consumers, upon seeing the junior party’s use of a mark on its goods, are immediately reminded of the famous mark and associate the junior party’s use with the owner of the famous mark, even if they do not believe that the goods come from the famous mark’s owner.

Further, the Court observed that dilution and consumer confusion were likely to happen seeing how close “the products are to one another.” In this case, both were similar products (athletic apparel) competing in the same market/channels for the same consumer class.

And now let’s see what copyrights mean.

Simply put, copyrights are the legal rights of the creator of an original work. While copyright laws differ from country to country, mainly they ensure that the copyright owner can control if (and at all) others can use their work (and how).

The Copyright Act (US),for instance, grants five rights to a copyright owner:

• the right to reproduce the copyrighted work
• the right to prepare derivative works based upon the work
• the right to distribute copies of the work to the public
• the right to perform the copyrighted work publicly
• the right to display the copyrighted work publicly

Photographs, designs, musical tracts, choreography, poems, photographs, designs and tons of other artistic, dramatic, literary and other works can be copyrighted.

Creators (or sometimes their employers) own copyrights to their work and can give or sell others limited or full access to their works for forever or stipulated periods.

For example, in 1985, Nike had to pay photographer Jacobus “Co” Willem Rentmeester $15,000 for the right to use their version of his iconic picture (that captured the legendary basketball player Michael Jordan leaping mid air about to dunk the basketball) on posters and billboards for two years in North America.

Later on, however, when Nike trademarked its “Jumpman” logo, which was a silhouette of Michael Jordan in a very similar pose that Rentmeester had captured and (Nike had recaptured?), Rentmeester filed a copyright infringement case against Nike.

But Rentmeester lost the case. Court US District Judge Michael W. Mosman wrote that:

[T]here is nothing original about the selection and arrangement of having a Michael Jordan jump with a basketball in the vicinity of a basketball hoop.

Furthermore, the Court pointed out that the pictures weren’t identical as they differed in the details of the pose, the size and position of Jordan in the frame, the colors, and the backdrop.

The Fair Use of Copyrights and Trademarks

As you can understand from the above examples, all possible trademark and copyright infringement cases either have a clear element of alleged “confusion” and “blurring” of brand distinctness or plagiarism.

But not all uses are so.

Some brands even allow you to use their Intellectual Properties for specific purposes for free. For example, Twitter explicitly lists out how you can use Twitter assets:

Besides, the copyright and trademark system allows for a few exceptions that let you use such Intellectual Properties of companies without seeking their explicit permission.

These “fair uses” mainly fall under two categories:

1. Descriptive
2. Nominative

Let’s understand both.

Third-party Trademark Fair Use Case: Descriptive

If a trademarked term is fairly descriptive, then others can use it as long as they’re using it to describe their services. This is allowed because a trademark owner can’t be given a legal monopoly over non-distinctive, generic words or phrases.

Take the Cosmetically Sealed Inds. Inc vs. Chesebrough Pond’s USA Co. case, for example.

Lip gloss maker, Cosmetically Sealed Inds. Inc., had registered the phrase “Sealed with a Kiss” as their trademark. The phrase is pretty descriptive as you can tell.

When a competitor, Chesebrough-Pond’s USA, Inc., started using a similar phrase “Seal it with a Kiss” to promote their lipsticks on their point-of-sale promotional displays, Cosmetically Sealed Inds., Inc. filed a trademark infringement case against it.

But they lost the case as the Court noted that Chesebrough-Pond’s USA, Inc. used the phrase not as a product identifier but as a descriptive call to action to invite consumers to test their lipsticks’ durability by applying it and then sealing or imprinting a complimentary postcard. This use was descriptive — hence wasn’t held for being infringing.

Third-party Trademark Fair Use Case: Nominative

In nominative fair use, others use a company’s trademarks to simply refer to the actual trademark owner.

The fact that the third party didn’t seek the trademark owner’s permission to use their trademark for such references doesn’t necessarily make such non-authorized use infringing.

There are many ways the nominative fair use of a trademark is used:

• Reviews, reporting, and general informative purposes: The use of a brand’s trademarks can qualify as non-infringing if used in covering content on them, provided the content is genuine and accurate.
  
  Example: “A detailed look at Brand X.“

• Comparative use: The use of a brand’s trademarks can qualify as non-infringing if used in comparative advertising, provided that any claims made can be substantiated.
  
  Example: “We’re better than Brand X.“

• Compatibility claims: The use of a brand’s trademarks can qualify as non-infringing if used to show compatibility (or list as ingredients), provided it doesn’t hint at endorsement.
  
  Example: “We’re compatible with Brand X”

• Use by resellers, distributors, and repair service providers: The use of a brand’s trademarks can qualify as non-infringing if competent independent or authorized parties use it to offer their services, provided it isn’t suggestive of being an endorsement or recommendation.
  
  Example: “Official or Independent Brand X Reseller/ Distributor/Service Provider” 

• Customers & business partners: The use of a brand’s trademarks can qualify as non-infringing if used to show relationships such as current customers or business partners, provided the use isn’t suggestive of being an endorsement or recommendation.
  
  Example: “Brand X uses us.” Or “Brand X is a customer.” Or “Brand X is a business partner.”

When it comes to using third-party trademarks under the nominative fair use provision, you have to be mindful of many conditions to protect yourself from unintended infringements. The International Trademark Association (INTA) — a global association working toward protecting the rights of trademark owners and securing useful legislation and its observance — explains some of the nominative fair use conditions as these:

1. the product or service in question is not readily identifiable without use of the trademark,

2 only so much of the mark as is reasonably necessary to identify the product or service is used and

3 use of the mark does not suggest sponsorship or endorsement by the trademark owner Of course, there are many caveats to such nominative fair use of third-party trademarks but usually most non-commercial, non-infringing use cases use this provision.

Making the Case for Fair Use of Trademarks Under Account-Based Personalizations

If you think about how logos and other third-party assets are used in account-based marketing campaigns keeping all the above content in mind, you’ll realize that ABM personalizations use them in a very limited, non-commercial, and non-infringing way, mainly because:

1. Only people from your target account see their trademarks on your website — and no one else. So the possibility that the use of their trademarks on your website can cause brand dilution or confusion in their target customer base is not there at all. Additionally, when you use your target account’s trademarks on your website, you don’t intend to cash in on their brand value — you’re only doing so to connect more meaningfully with your target account.

2. Your use isn’t suggestive of any endorsements or associations with the target account. Nor is it misleading or defamatory.

3. The trademark integrity is protected. (For example, with the logo being used as is, and not in any distorted, dismembered, or misinterpreted forms.)

Best Practices to Avoid Unintended Trademark Infringements in Account-based Marketing Campaigns

The application of the fair use doctrine is a fact-intensive inquiry. To increase the likelihood that it applies to your account-based marketing campaigns, you should keep in mind the following best practices.

• Maintaining relevance without being creepy. When someone from your target account lands on your page, you want to connect with them subtly. You don’t want them to feel like they’re on a page from their own website. Right? So personalize meaningfully and only the necessary elements.

• Conforming to fair use. Avoid messaging that’s suggestive of affiliation, sponsorship, or endorsement by the trademark owner. If you can help them someway with your service, say it like that. Your messaging and how you use your target account’s trademarks should clearly reflect the actual relationship between the target account and your company.

• Revising legal pages. Add a clause to your privacy policy and explain how you collect data, and how you might process IP addresses to use for ABM personalizations to offer a better website experience. Also, add a conspicuous disclaimer about the ownership of the trademarks and explain the purpose and use you put them to.

And while this article helps you understand how you can launch ABM drives that use your prospects’ trademarks without falling into legal troubles, it shouldn’t be taken as legal advice. Be sure to consult a lawyer when considering personalized ABM campaigns.

Set Up a Brand Logo Personalization in Deploy

The more powerful web personalizations for account-based marketing campaigns will inevitably use the target account’s trademarks.

But when done diligently, they can be both safe and relevant… just as you’d like them to be to inspire your target accounts to want to work with you.

So if you’re looking for more ways to connect with your key prospects, you can use Deploy to personalize your messaging. Check this article for 16 more ideas you can try out on your website today (yes, today, because you don’t need to wait until Dev makes time).