The Future of Augmented Advertising is Now

The Burger Wars Bring the Lanham Act Into a Brave New World

Déjà vu struck me today. A friend tipped me off to a new Burger King ad in Brazil that uses augmented reality to “burn” the ads of rival burger chains (principally McDonald’s). Consumers who follow through are rewarded with a free Whopper:

This is a brand-new way of using AR to engage customers and target rival brands.

But it’s also the same scenario I’ve been using as a hypothetical in my presentations and writings on AR law for almost a decade. Burger King and McDonald’s have been stereotypical arch-rivals for as long as I can remember–the Batman and Joker of the fast-food industry. (Which is which is in the eye of the beholder.) So when I began almost ten years ago searching for an example of what mobile advertising would look like in the future, my go-to example was always “a Burger King app that augments the Golden Arches,” as in this clip from a 2103 presentation to a group of developers in Detroit:

Why does this matter? Because this hypothetical was also meant to illustrate why we’d soon start seeing trademark infringement, false advertising, and other Lanham Act litigation in the AR space. These two rivals care very deeply about the integrity of their brands; it was McDonald’s, after all, that sued Burger King in the early 80’s over comparative ads featuring Sarah Michelle Gellar (and got so upset that it apparently still bans her from all of its restaurants). So if there were ever two companies who would bring litigation alleging customer confusion or deception over an AR ad, it would be companies like these.

Which, as a trademark litigator and AR aficionado, gets my Spidey Sense tingling.

That said, trademark litigation is meant to prevent customer confusion, not a brand owner’s feelings. It’s difficult to conceive of a persuasive argument for why anyone would be confused over whether a company is affiliated with a campaign that sets its own ads on fire, particularly when the experience is only available through the rival’s own app (which, I’m sure, is precisely why BK approached it this way.) The law provides space for honest comparative advertising (thanks in no small part to McDonald’s losing the Gellar case), and brands like Wendy’s have perfected the art of trolling their rivals online.

But this is only one example of location-based AR advertising. There are plenty of others (such as sponsored waypoints in games). And we know that AR is a unique medium for engaging consumers. Particularly as AR becomes more decentralized (e.g., through browser-based experiences) and immersive (such as when passive, always-on digital eyewear becomes the norm), Lanham Act litigation is going to explode just like one of the ads in this BK app.