In 2000, consumer advocate and presidential candidate Ralph Nader ran a campaign ad modeled on MasterCard’s “Priceless” promotional series. The “Priceless” series, which began in 1997, showcased goods and services that could be purchased using MasterCard, with a voice over announcing the price of each item, then naming an intangible good associated with the purchasable items as “Priceless.” Each ad ended with the slogan, “There are some things money can’t buy, for everything else there’s MasterCard.” The Nader ad also featured a series of “purchasable” political goods ranging from a campaign fundraiser meal valued at $1,000 a plate to “promises to special interest groups: over $100 billion.” It ended with the phrase “finding the truth: priceless. There are some things money can’t buy.” After the Nader ad began its television run in early August 2000, MasterCard demanded Nader cease and desist or face liability for intellectual property infringement.
On August 16, 2000, MasterCard filed suit alleging Nader was liable for various state and federal trademark violations (including dilution), copyright infringement, unfair competition, and misappropriation. The court denied MasterCard injunctive relief, and after four years of discovery and briefing, Nader’s summary judgment motion was granted.
With regard to trademark, the court acknowledged the strength of MasterCard’s registered “Priceless” marks, but relying heavily on the dissimilarity of the goods advertised, it found no likelihood of confusion to the public. The court also rejected MasterCard’s dilution claim. Because the Nader advertisement was non-commercial political speech, it was expressly exempted from the reach of federal dilution law. Even were Nader’s speech found to be commercial, opined the court, there was no evidence of actual dilution requisite to a federal claim or even likelihood of dilution needed to sustain a state claim.
The Court quickly rejected the misappropriation claim as preempted by federal copyright law. According to the court, Nader’s ad copied MasterCard’s copyrighted material, but constituted fair use. The court used the standard four-prong fair use test, looking to 1) the purpose and character of the use; 2) the nature of the copyrighted matter; 3) the amount and substantiality of the portion used, and 4) the effect of the copy on the potential market for, or value of, the original work.
With regard to the first factor, the court again pointed to the non-commercial, political purpose of the Nader ad, which it read as a transformative parody of the MasterCard “Priceless” series. Because the Nader ad was a parody, reasoned the court, the creative nature of the “Priceless” ads (a factor two consideration) did not cut against fair use protection. Looking to the third factor, the court found that the Nader ad only used as much of the MasterCard ad as was necessary to draw an association in the mind of the viewer. Finally, under factor four, the court held that although both the original “Priceless” ad and its parody competed for the attention of the same viewing public, their purposes were sufficiently different to forestall an adverse market effect.
On the last charge of consumer deception, the Court found that due to its non-commercial, political nature, the Nader ad did not deceive consumers in the manner intended by state statute, nor did Nader possess the requisite intent to deceive.
For these reasons, Nader’s motion for summary judgment was granted in its entirety.
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