McDonald’s Trade Dress? State Farm is There.


Passing by a roadside billboard recently (below is a miniature version I found in the Minneapolis skyway system), my first thought was, wow, McDonald’s is getting into the juicy lucy business:

Until more focus revealed that State Farm Insurance is the one behind the ad. Look familiar?

No doubt burgers and car insurance are totally different lines of business and seemingly unrelated for any likelihood of confusion analysis, but is State Farm so confident that there is no protectable McDonald’s trade dress here (virtually identical red background color, burger positioned on left portion of ad, and white all lower case letters in copy to the right portion of the ad), and is it so confident that any claimed trade dress is not famous for dilution purposes? Is it even possible that McDonald’s was not contemplated as a possible risk during the preparation of these ads?

A more basic question might be, what on earth is State Farm doing trying to sell car insurance by plastering larger than life size juicy lucy burgers on billboard signs? I’d love to have been a fly on the wall during these brainstorm sessions. I really don’t get it, and I’m doubting Mark Prus will either. Do you suppose the agents who try to sell State Farm health insurance products had any say in these gastrically-stimulated ads? I’ve been loyal to State Farm as customer since I could drive and I didn’t know (until writing this post) that State Farm offers health insurance products.

So, putting aside the notion of a potential trade dress claim, what I’m left wondering is whether McDonald’s thinks State Farm is acting “like a good neighbor” on this one? In other words, would State Farm think McDonald’s is acting like a good neighbor if McDonald’s started offering a “discount double check” burger? Maybe Aaron Rodgers could flip them and help sell them?

What do you think, does McDonald’s have a viable trade dress claim? And, is State Farm acting like a good (trademark) neighbor here?

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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