What is the legality of depicting various brands, logos, advertisements, etc. in a youtube video used to promote a marketing/branding company? Does anything change if that YouTube video is posted to said marketing company's website? Is there a way to shoot (film) advertisements, logos, etc. without infringing on any laws?
2 Answers from Attorneys
Generally speaking, even though under certain circumstances the law allows to use trademarks without prior permission from the mark owner, the use you asked about could present significant problems and expose you to liability.
With proper review it may be possible to use trademarks and stay within the framework of the law. Unfortunately without being retained so an attorney can review your use, the question cannot be answered.
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This is a very grey and highly contested area. The general rule regards to using another's mark, as dictated by the 2nd Circuit, I believe, is "use no more than what is necessary." I will add, that the outcome of a case like this will matter greatly depending on where the case is heard (e.g., 9th Circuit, 2nd Circuit, 7th Circuit will all have varying opinions on this).
What many lawyers interpret this to mean is that using logos is almost always "more than what is necessary" as opposed to just using the text name. But of course, you can refer to other brands and I'm sure you have seen this in ads, etc. it is concept know as "nominative fair use, " you should look that up.
It is very hard to say here where I would come out regards to your situation. I think if you are using many different brands as opposed to just one or a couple it weighs in your favor. That is it makes it harder for them to claim market confusion when their brand was one of a dozen depicted. But you will always run the risk of a mark holder getting irritated by your use of their mark.
If you are planning a serious effort here, I strongly suggest you consult an IP lawyer in private and get some specific guidance. If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis
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