A video photographer is producing a short television spot intended to raise public awareness of poverty in the local area and the work of a local charity. The video photographer receives permission from a local welfare family to film them preparing and eating a Thanksgiving dinner with food provided by the charity.

The project is lots of fun, the family is very sweet, and the charity comes through with loads of groceries for the dinner. Back in the studio, the video photographer goes over the footage looking for the best piece for the TV spot. As it turns out, there is one incident that is so endearing that the video photographer feels simply must be used.

The footage shows a scene of the family gathered around the dinner table talking and eating when the youngest child, a cute little boy, looks up from his plate and gravely intones to his older brother "Do you have any Grey Poupon?" His brother smartly passes a bottle of the mustard to his sibling, and everyone breaks out in laughter.

When the video photographer is just about finished creating the spot, he recalls something from school about copyright or trademark infringement.

Is there a potential for infringement here?

Expert Answers

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It is unlikely that the videographer in this question would face legal action for the depiction of the bottle of mustard and the use of the phrase from the commercial.  This is because there does not appear to be any likely tarnishing of the Grey Poupon trademark.

The basic idea behind the idea of tarnishing a trademark is that the owner of the trademark is entitled to prevent their mark from being used in such a way as to bring it into disrepute.  That does not appear to be a problem in the case given in this question.  In this question, the interaction between the two brothers will, if anything, improve the image of the trademark.  Since the use is in a video of a family that is clearly going to be viewed very sympathetically by the audience, there is no worry about tarnishment.  If the family were really horrible and were likely to antagonize viewers, there might be an issue.  Here, there is not.

In addition, there does not seem to be any worry about implied endorsement.  The film would not imply that it was in any way endorsed by Grey Poupon or that it owned Grey Poupon.  For these reasons, there does not seem to be a major issue with this use.

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