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Walmart sells a line of beverages manufactured by Cott with very generic labelling, for example:

Cott Grape soda image

Since these drinks bear no brand name, I know there are no trademark/brand issues there. There are also no trademarked logos (with the exception of a very small Royal Crown logo by the nutrition facts which would be easy to not show on camera).

Here's what I'm wondering: Could the printed format on the can be protected by some sort of copyright/trademark or other form of intellectual property protection? If so, how can I find out?

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I wouldn't hang my hat on any answer that didn't come from an actual lawyer. I think this will likely boil down to some very localized and specific details. –  JoshP Jul 8 '13 at 18:47
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3 Answers

I think you have the reason that brands don't appear in films backwards. "Promotional Consideration" is the term for a company paying to have their product used in media as a form of advertising. Generally, entertainment companies avoid displaying any brands because they want to be paid for the product to appear and couldn't charge for it if they just did it anyway.

It doesn't hurt to verify in your jurisdiction (and I am not a lawyer), but I'm not aware of any restrictions on a trademark appearing in media as long as it appears on something that the trademark actually belongs to. If one of your characters is drinking a Pepsi, it isn't a misuse of the Pepsi trademark because it is the product being used.

Now if you instead slapped the Pepsi logo on the side of a building and filmed it as if it was what was going on at the Pepsi headquarters, then there might be trademark issues since it is a use of the trademark for purposes other than official Pepsi products.

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Ah, that is a good point that I didn't think about. In that case, if I wanted to avoid displaying brands in order to avoid giving the impression that I supported one brand over another, this method would probably work. –  called2voyage Jul 8 '13 at 18:17
    
You have addressed my primary concern about whether or not it would be ok for the soda to appear on film, but if you could also address my secondary question as to whether or not the layout of the can is protected in anyway and how I could find out, then I could accept this answer. –  called2voyage Jul 8 '13 at 18:19
    
@called2voyage - I thought that was clear from my answer, I am not aware of any aspect of trademark law that prevents a unaltered product from appearing in film as long as it is an actual product that bears the mark from the mark holder. I would still verify it with a lawyer and your local jurisdiction if you plan to use the film commercially though. –  AJ Henderson Jul 8 '13 at 19:19
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In addition to what AJ says, and I am also not a lawyer, one reason for not displaying actual brand logos is if your use (by a character, etc) could be seen as placing the brand in disrepute, or in some way showing it in a negative light. Many companies are very touchy about reputation and won't hesitate to call out the legal beagles.

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Thanks for pointing out a possible legal concern. I'm still looking for someone who can answer whether or not the can format is protected and how I could find out. –  called2voyage Jul 8 '13 at 18:38
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up vote 3 down vote accepted

I received an answer from an actual lawyer:

Context matters. As a general matter, it is perfectly "legal" to use anyone's logo or brand indicia in a film, without permission, as long as it is done in a manner which does not falsely suggest the endorsement or sponsorship of the film or the producer's products by the trademark owner. For example, it is entirely possible to have your hero drink Beefeater or 7-Up in clearly identified containers. No permission is required. It is not really clear what interest you may think is being protected, but trademark law doesn't preclude all use of the trademark owner's mark by others. Sometimes, in an excess of caution, such permissions will be sought. They are nearly universally granted.

From Hilary B. Miller on Lawyers.com

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