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Intellectual Property and Unfair Competition


MasterCard International, Inc., issues credit cards through more than 23,000 banks and other financial institutions. Since 1997, MasterCard has aired television commercials that have come to be known as the "Priceless Advertisements." These advertisements include a sequence of names and pictures of goods and services purchased by persons using their credit cards. Voiceovers and visual displays convey to the viewer the prices of these items. Each Priceless Advertisement concludes with mention of a priceless intangible that cannot be purchased (e.g., "a day where all you have to do is breathe"). The reference to the priceless intangible is followed with this statement: "Priceless. There are some things money can't buy. For everything else there's MasterCard."

In August 2000, it came to MasterCard's attention that Ralph Nader's campaign committee was promoting Nader's presidential campaign through use of a television advertisement that bore similarities to MasterCard's commercials. Nader's political advertisement listed this series of items and their supposed prices:

Grilled tenderloin for fund-raiser: $1,000 a plate.
Campaign ads filled with half-truths: $10 million.
Promises to special interest groups: over $100 billion.

The advertisement concluded with "[f]inding out the truth: priceless. There are some things that money can't buy." Besides being aired on television during a period of roughly two weeks in August 2000, the Nader advertisement appeared on the candidate's Web site during the remainder of the 2000 presidential campaign.

MasterCard complained to Nader's campaign organization about the Nader advertisement's similarity to the long-running MasterCard commercials, suggested in a letter that the Nader campaign develop a more "original" advertisement, and threatened litigation if use of the Nader advertisement continued. It soon became clear that there would be no agreement to resolve the dispute. Therefore, MasterCard filed suit against Nader and his campaign organization.

Consider this scenario and the following questions as you read Chapter 8:

  • Which area of intellectual property law provides MasterCard the rights it sought to enforce against the defendants? Was this, for instance, a patent infringement case? Alternatively, was it a copyright infringement case? Or was it a trademark rights case? Could MasterCard have been relying on more than one of these areas of intellectual property law?
  • What specific rights would MasterCard have been attempting to enforce in this litigation?
  • What arguments would the defendants have made in an effort to avoid liability to MasterCard?
  • What public policy issues are at stake in cases of this nature?
  • How did this case turn out?
  • What ethical questions are suggested by a person's use of someone else's intellectual property? What ethical issues attend intellectual property owners' attempts to enforce their supposed rights?








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