Altered rapped for 'Marlboro' ad
Altered Radio has been left reeling at a heavy handed letter from Marlboro tobacco giants Philip Morris Products criticising a popular promotion campaign last year.
Solicitors acting for the firm have written to Altered Radio management requesting the withdrawal of all material produced during the Hilary Term 'Listening Thrills' campaign that bore the background of the well-known cigarette packets. In a letter London solicitors Clifford Chance, seen by The Oxford Student, the forwarding of all publicity material bearing the image is requested.
There is no threat of legal action in the letter, instead Philip Morris justify their request by suggesting that the publicity could be mistaken for official Marlboro advertising.
The letter continues: "Our client is all the more concerned at the possibility of your being associated with our client as, we understand, your radio station is specifically aimed at students."
The letter cites Philip Morris' sponsorship of the worldwide Youth Smoking Prevention Program, a campaign that has the sole aim of preventing smoking amongst young people, as a reason why they are so careful that none of their tobacco trademarks are used: "on or in relation to any products targeted at youths".
Therefore it appears Philip Morris chose to erroneously cite their involvement with the YSP Program as a reason why Altered Radio should comply with their wishes because they had an extremely tenuous legal basis upon which to challenge the use of the trademark.
Alex Baker, Station Manager of Altered Radio, told The Oxford Student that while he was happy to comply with Philip Morris's request; he refuted the claims that the flyer could have led to an increase in youth smoking.
"Altered Radio believes it is unlikely people would be confused into thinking our cards were distributed with the prior authorisation of Philip Morris Products given the satirical nature of the design on the card", said Baker. He pointed out that the Altered Radio campaign was aimed solely at students of Oxford University who were unlikely to confuse the flyer with genuine Marlboro publicity and all of whom were over the age at which the Youth Smoking Prevention Program is aimed.
The Trademark Act 1994 states that an offence is committed if: "there exists a likelhood of confusion on the part of the public" or a strong: "likelihood of association" between the Trademark holder and the purveyor of the item under dispute.
There is no doubt that the Altered Radio flyers created an implicit association with the Marlboro trademark but Dr Jeremy Philpott of the UK Patent Office told The Oxford Student: "Parody works because the consumer is not confused, no one is going to mistake a radio station for a brand of cigarettes."
However Philpott said that he could not comment definitively on specific cases because each case heard at the Patent Office is judged on its own merit. Philpott also said that it was common in these cases for the holders of Trademarks to ask for the cessation of the use of parodies regardless of whether or not the law would support them.
In 2003, the Canine Defence League succeeded in their attempt to register the Trademark 'Toys Aren't Us' despite opposition from Toys "R" Us. The Appointed Person in the case granted the application; concluding that while: "people exposed to the applicant's mark would see it as a play on the mark Toys "R" Us... the distances between the parties' goods and services are such that I do not think it at all likely that they would be misled into assuming a trade connection or other link".
When informed of The Oxford Student's investigation, Alex Baker replied that he would still be complying fully with Philip Morris' wishes because he did not wish to take advantage of the recognition factor afforded to the radio station by the manipulation of the Marlboro logo, even if it was legally admissible.
However, Baker added that he had written to Clifford Chance to express his opinion that the flyers were unlikely to lead to an increase in youth smoking.Philip Morris products were unwilling to comment on the letter but said in a statement: "As owner of some of the most recognisable trademarks world-wide, we do not want anyone using them for unauthorised commercial purposes."
6th Oct 2004