Fair Use of GM’s Corvette Stingray?

by Winthrop & Weinstine, P.A.
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While filling up my gas tank at our local Costco last week I coudn’t resist capturing this photo of pump signage to ask our dear readers a few pointed questions:

Is there any doubt that the automobile depicted in the Costco advertisement is a Corvette Stingray? If so, HiConsumption should resolve any lingering questions.

How did you know (if you did), before checking out the 2014 Corvette Stingray photos on HiConsumption? Perhaps the federally-registered Stingray logo on the front quarter panel behind the wheel? The barely visible Corvette logo on the wheels? The overall shape and configuration of the automobile?

Although GM has a long list of non-traditional trademark registrations to sift through on the USPTO database, I was unable to locate one covering the current shape of the Corvette Stingray (I suspect our friends who are also patent types could probably locate some design patents covering the ornamental design of the vehicle, so I didn’t bother going there), but I did locate a few trademark configuration registrations covering earlier Corvette model shapes of actual vehicles and toy replicas (here [cancelled], here, and here).

Marketing types, how would you go about obtaining the Corvette image to incorporate in the above advertisement? Would you feel the need to obtain permission from GM to display these ads at point of sale? I hope so.

Legal types, is there any legitimate basis for Costco claiming fair use here? I’m thinking not — assuming this use is not authorized or licensed, it appears to appropriate the goodwill of GM to attract attention to and help sell Kirkland Top Tier gasoline. Remember this little gem from five years ago in our archives? The Costco ad above — depicting the entire profile of the vehicle shape and design — seems even less justified than the partial Corvette image in the Schlitz ad, at least from where I’m sitting.

Last, do you suppose this ad on signage slipped by Costco’s legal department or might there be an aggressive stand on fair use, or perhaps if questioned, an attempted defense to challenge GM’s underlying rights — I’m assuming GM can establish acquired distinctiveness in the shape if it had to, even without a federal registration (but a single piece of paper as proof would be much better).

Remember what happened when Tiffany (the jewelry company, not our Tiffany) complained about Costco’s unauthorized use of the Tiffany name?

Costco counterclaimed for cancellation on genericness grounds, so what might we expect here, assuming the point of sale advertisement was not authorized or licensed by GM?

I’m thinking this signage is going bye bye, how about you? So, why don’t we just start the count-down now?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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