As part of educating trademark clients, I often provide them with real-life examples of points I’m trying to make. So for example, when I want to talk about the risk of committing genericide, I talk about Rollerblade and Frappuccino. When I talk about the fact that the same mark can be used by multiple parties so long as there’s no likelihood of confusion, I mention Prince spaghetti, Prince tennis racquets, and the Artist Once Formerly and Now Currently Known as Prince.
So in theory, the same mark on such disparate products as ice cream novelties and condoms, for example, should be able to coexist, without creating confusion. Well, guess what? In practice they do too! I give you Exhibit A – pointed out to me by my 15 year-old daughter:
But the point made by said precocious offspring is not just the coexistence aspect, though as the daughter of two trademark attorneys she’s well aware of that; it’s the smut aspect, as she’s well aware of as the daughter of a mother with a dirty mind. Yes, she said “Magnum? And that popsicle is so phallic!” Indeed.
Look, like her mother, my eldest reads a lot of magazines, and in general is no dummy when it comes to suggestive advertising. That awareness will serve her well in Honors English when she gets to the pickle dish in Ethan Frome, for example. But she actually brings up a significant issue here: Although technically not infringing the Magnum trademark for condoms, is this ad trying to suggest the Magnum condom trademark?
One thing I’m pretty sure of is that the ad isn’t directly trying to suggest the Magnum pose immortalized by Derek Zoolander. But if condoms and Zoolander are what teen girls think about when they see the ice cream ad, maybe that’s what they wanted after all.
Photo from benstiller.net