Law: Trademarks
Using Logos and Brands in Photographs
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
In summary, don’t use logos or trademarks in photographs. There, now you can move on and skip this topic.
“…a photograph which prominently depicts another person’s trademark might very well, wittingly or unwittingly, use its object as a trademark.”
— U.S. Sixth Circuit, Rock & Roll Hall of Fame v. Gentile, 1998.
“ All trademarks must be removed. This includes logos, brands and entities with copyright or trademarked elements. This many also extend to trademarked products such as cast sculptures, toys, architecture and other elements of design.”
— iStockphoto.
Still here? Then let’s look into trademarks.
Trademarks
Trademarks are badges of origin to indicate the commercial source. When you see the Nike swoosh, the golden arches of McDonald’s, or the apple of Apple, you know who is responsible for those products.
“A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.”
— U.S. Patent and Trademark Office.
Trademarks in your Photos
If a logo or trademark is visible in your photo, then it could be construed that you are somehow affiliated with the trademark owner, or your photo is endorsed by the company that is. Whether intentional or not, potentially confusing the public in this way can be illegal.
Use of a Trademark
Let’s imagine a delicious looking, dark-colored soft drink. Mmm, I’m thirsty already. You might think that The Coca-Cola Company made this drink If it features the text “Coca-Cola,” a Coca-Cola logo, or the Coca-Cola-shaped bottle, thus all those things are trademarks.
But let’s say I really made that drink. Since I could be confusing you, I would be violating trademark law. Very soon, I might receive a stern “cease-and-desist” letter from The Coca-Cola Company, or a notice that I’m being sued in federal court. This would not be a good thing.
However, I am able to use the text “Coca-Cola” in this article. How come? Because it’s the use of a trademark that counts. Used on a drink, the public might reasonably believe that the drink is real Coca-Cola, or that I am somehow affiliated with The Coca-Cola Company. But used in this article, the public can tell (hopefully) that I’m presenting an example and that I am in no way connected to The Coca-Cola Company!
“[A party can defend an infringement charge when the trademark is] used fairly and in good faith only to describe the goods or services of such party.”
—15 U.S.C. Section(s) 1115(b)(4)
Avoid Confusion
The test of trademark infringement is the likelihood of consumer confusion. If you sold a photo of a car showing the BMW logo, might it look as though you are connected to BMW? It doesn’t matter that you are not; it matters that the public might think you are. Confusion can be illegal. Thus, ensure that the photos you sell do not include logos and trademarks.
