"Espresso Club proposes a different way of thinking than that presented in the Clooney commercial: good coffee can also be enjoyed in a T-shirt. The mere presentation of a new concept does not dilute the Nespresso brand"
PR Newswire
TEL AVIV, Israel, March 15, 2017
TEL AVIV, Israel, March 15, 2017 /PRNewswire/ --Espresso Club's use of George Clooney's character in an ad does not violate Nespresso's copyright ruled Tel Aviv District Court Judge, Magen Altuvia in dismissing Nespresso and Nestle's claim.
Watch the ad: https://youtu.be/56DKvnXmpxo
"The plaintiffs seek to create the perception of a prestigious and quality brand within the Israeli public too... after all, it is common practice to attract buyers by glorifying the prestige of the product and presenting its international ambiance. The respondent proposes a different way of thinking: good coffee can also be enjoyed in a T-shirt. The mere presentation of a new concept does not dilute the plaintiff's brand. The opposite is true, the respondent, albeit in a sophisticated manner, actually retains the image that the plaintiffs wished to attach to the brand, presenting a perception that goes against that which underlies the competing brand, and not against the brand or the product," stated the judge in his ruling.
"The court found that, although Nespresso invested millions of dollars in ads starring George Clooney, it holds no creators' rights in his regard. The ruling further supports the Israeli companies' freedom of competition against international giants like Nespresso," said Adv. Zohar Lande, which represented Espresso Club.
Nespresso also argued that the spoof ad in which Espresso Club featured a George Clooney double had damaged its goodwill.
The judge rejected the claim that the ad denigrates Nespresso's products and goodwill by portraying Nespresso as inaccessible to those without wealth.
"It's clear the Espresso ad was not born out of thin air and one cannot dispute the fact that it corresponds with the Nespresso advertising campaign starring George Clooney as it presents a 'tongue in cheek' reference to the competing brand... The main idea derived of the ad is merely that Espresso Club offers a simple alternative to drinking coffee from a capsule, free of any codes of dress and conduct, where the main message is the unique selling model... I don't find that the average viewer deduces that Nespresso is not accessible to all... this interpretation is farfetched and isn't verbally grounded in the ad."
Altuvia rejected Nespresso's claim that Clooney's character is copyright protected "Clooney's character in the Nespresso ads is based mostly on Clooney's "real" persona as perceived by the public as the image of a successful movie star... although there may be a certain difference between the true persona and the allegedly fake one, it's not enough to claim that it's a conjured character reflecting creativity and originality to the extent that it's entitled to creators' rights protection".
The judge added that even if Clooney's ad character is fictional, copyright belongs to George Clooney, the actor, not to Nespresso.
On Nespresso's claim of trademark violation, the judge said, "In light of the contract between Clooney and Nespresso, Clooney's presence in the brand's lifetime is temporary, thus it's difficult to grant Clooney's character any trademark features, which are timeless."
The judge rejected Nespresso's claim that its trademark was violated because the Nespresso store design is a well-known trademark and the store that the Clooney double exits in the ad resembles a Nespresso store.
Israel's Espresso Club lets consumers pay for capsules and receive the coffee machine and free service to their home. "Espresso Club hailed the verdict which recognized that the ad was an acceptable form of freedom of expression and that it helped promote competition in the coffee market."
Contact:
Adv. Hedan Orenstein
Partner, RCSPR & Co
+972-52-4488961
hedan@rcspr.co.il
