Emerson Drops Product Placement Case Against NBC

A lawsuit alleging that NBC engaged in unauthorized and unflattering product placement in the hit show "Heroes" has been settled out-of-court. NBC Universal reached an agreement in which the Emerson Electric Co. would drop the case charging the network with "causing irreparable injury" to its InSinkErator waste-disposal brand.

Terms of the deal were not available, although Emerson last week dropped the charges in a filing with a Missouri court.

In the suit filed in October, Emerson said NBC did not have its permission to use the clearly visible InSinkErator brand in the show, and sought compensation for a slew of resulting damages.

Emerson declined comment. NBC did not immediately respond to a request for comment, but last fall reportedly said it did not feel it was liable. Attorneys that represented both sides also declined comment.

Back in October, Emerson was so enraged--or perhaps interested in seeking a favorable settlement--that it even declined to drop the charges after NBC reportedly agreed to edit the scene in the "Heroes" episode, in which a character sticks her hand in a kitchen-sink InSinkErator and pulls it out mangled and bloodied.

Among Emerson's charges about the Sept. 25 series premiere were trademark infringement and dilution, and unfair competition for misrepresenting and sullying the InSinkErator brand.

Had it gone to trial and Emerson won, the case could have set a precedent regarding a network's rights in how it depicts branded products in its creative work.

However, Mark McKenna, a trademark law expert at St. Louis University School of Law, last fall wrote in an email: "The case is very unlikely to succeed against NBC."

"There is precedent for the notion that certain uses of another party's trademark in an unflattering light can be deemed tarnishment or disparagement," he wrote. "I am not aware, however, of any case finding a use of a branded product in a creative work to violate trademark rights."

McKenna yesterday wrote he was not surprised by the settlement, though it could "embolden future claimants." But, he said, "NBC is owned by GE. GE is a major advertiser. So NBC's interests really are on both sides of this issue. If they fight hard for the integrity of their communicative work, they might establish a principle that the GE folks don't much like with respect to uses of their products or trademarks. So this is, in part, a story about the conflicts of interests many media entities have."

The allegedly unlawful scene aired both on the NBC network on Sept. 25 (seen by some 14 million) and in an online stream on NBC.com. An image from the scene remains archived on blog Defamer.com and DVDs of the pilot episode sent to media buyers and others last spring remain in circulation.

In the suit, Emerson said NBC misrepresented any risks or potential injuries posed by the InSinkErator on the show, while portraying the brand "in an unsavory light, irreparably tarnishing the product."

Emerson, which has marketed the brand for 78 years, further blasted NBC in the court documents with "deliberate and willful ... intent to cause confusion, mistake, and to deceive and defraud the public."

While it is unclear what the settlement agreement entails, it could include NBC providing Emerson with free advertising, sort of a makegood, on its air. Last year, Emerson spent $420,300 for InSinkErator on network television--all on NBC, according to Nielsen Monitor-Plus, showing it may have a preference for the network.

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