Somebody created two ads showing a woman performing a sex act on a man. Both are wearing PUMA sportswear, the PUMA stripe prominently displayed. The ads were forwarded to Adland with the comment that these ads ran in a Maxim-like publication in Brazil, a claim plausible only if you consider the high-fashion quality of the photos, and ignore the ejaculate. Puma has now sent a demand letter to Adland (which responded by pixillating the trademark). If Puma had a sense of humor, it could have said something like “Of course the ads are fake, that’s a discontinued line.”
Which brings us to tarnishment, and the debate as to whether an actionable form exists. Setting aside Adland’s First Amendment defense, does this ad cost Puma any money? Is there a lost sale, a lost licensee? Last week’s Victor’s Secret case expresses the sentiment that tarnishment reflects poorly on the tarnisher, not the tarnishee. Of course, if the tarnishment takes the form of a hoax, then that might not be true (among those who never learn that it is a hoax).
p.s. I’m not posting the ad because in a random survey, I have determined that the ad is offensive to some. If you wish to take an affirmative act and view the fake PUMA ad, click here.
p.p.s. Puma is upset by the fake ad, but Gucci paid money to run the brand positioning ad to the right. To paraphrase Spinal Tap, there’s a thin line between tarnishment and fashion advertising. More on that here.
UPDATE: Actual Malice blogger guest-writes on TechLawAdvisor on Puma.