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Nasir and Matt discuss the commercials featuring Ronald McDonalds approving of Taco Bell's breakfast. They also attack the independent contractor misclassification issue from the employee perspective in the question of the day. Full Podcast Transcript NASIR: All right, Episode 27 and that’s 2.7 percent of a thousand episodes. MATT: Yeah, for people listening a couple of episodes ago, I’m glad we got this straight. NASIR: Welcome to Legally Sound Smart Business. This is Nasir Pasha. MATT: And this is Matt Staub. NASIR: And we are starting off the day with a nice little Taco Bell and McDonald’s story. MATT: Yeah. So, hopefully, you’re having breakfast right now because, even though this is involving Taco Bell and McDonald’s, of course – this is a breakfast story now. Some of you may have already seen the commercial. I know I’ve seen it a couple of times. Basically, I’ll back up a little. Everyone knew McDonald’s has breakfast. It’s well-known that it ends at 10:30 because people make jokes about it all the time. So, Taco Bell saw this and said, “Hey! Why don’t we get into this market? We’re Mexican fast food. It only makes sense for us to get into breakfast.” So, they’re running these commercials and I’ll give them credit – these commercials are pretty good. It’s pretty funny. They have all these people that they found around the country named Ronald McDonald to eat the breakfast food that they have and comment on how much they like it. Now, I guess they did pay these people to be in the commercial but they claim all the responses are real – which I find hard to believe because, if you look at some of items that Taco Bell’s breakfast are, they don’t even look appetizing in the pictures so I can’t imagine what it really looks like in real life. NASIR: I have not tasted it myself though Taco Bell is probably the only fast food restaurant that I tend to eat once in a while – maybe once every couple of months or so – but I thought the commercial was hilarious. It kind of caught me off-guard because I didn’t even know it was a Taco Bell commercial until later. MATT: It is pretty interesting. A waffle taco? An A.M. Crunchwrap? An A.M. Grilled Taco Breakfast Burrito? That’s pretty standard. Cinnamon Delights? The main thing in this is, when people watch, they might think, “Is Taco Bell allowed to do this?” because they’re basically taking the name Ronald McDonald which is associated exactly with McDonald’s – the big red-haired clown or whatever he is. They’re using that name – not his likeness but the name – to try this Taco Bell food and approve of it. NASIR: Yeah. So, we’ve talked about in the past how character names and likenesses of a mascot or a logo or what-have-you or a particular company is protected by trademark and copyright law. But Taco Bell was smart, of course. They deliberately chose to advertise its product featuring real men named Ronald McDonald and also put it in disclaimer – I don’t know if you caught it at the end and I even rewound it on my DVR just to read it again – it said something like, “These Ronald McDonalds are not affiliated with McDonald’s Corporation and were individually selected as paid endorsers of Taco Bell, et cetera.” And so, we’ve talked about fair use, right? But, when an advertiser uses a competitor’s trademarks within their commercial, for example, it usually falls in the nominative fair use doctrine. However, there’s a few factors. The courts review whether the company had a need to use a trademark in order to identify the competing product, whether they went beyond the use necessary in order to make that identification. Classically, it reminds me of I think it was either Verizon or ATaT – I think it was Verizon that would take ATaT’s coverage map next to theirs and use their ATaT logo. The question is, well, how can they use their logo and the brand, well, to identify the differentiation. It’s not like Taco Bell had these guys dressed up in a clown uniform either.