Using Logos and Brands in Photographs
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
By Andrew Hudson Published: June 17, 2011 Updated: October 19, 2016
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.”
Still here? Then let’s look into 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)
Logos are the commonly used designs that identify a company, and are thus, for big companies at least, almost always registered trademarks.
Logos and trademarks are very strictly controlled by businesses and you are unlikely to get permission to use them. The design of a logo can be covered by copyright law, and the usage is an issue of trademark law.
In the U.S., trademark infringement and false advertising are covered by federal statutory law known as the Lanham Act. Named for Congressman Fritz Lanham, (D-TX), a proponent of strong trademark protection, the Act forms title 15, chapter 22 of the United State Code.
False Designations of Origin
(a) (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or;
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
— Lanham Act, 1946, 15 USC 1125
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.
“The purpose of a §43(a) claim is to prevent consumers from being misled or tricked into making purchases through use of a trademark."
Fifty-Six v AVELA, 2015
“The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling.”
Pom Wonderful LLC v. Coca-Cola Co., 134 S.Ct. 2228, 2233 (2014)
“[the purpose of Lanham Act trademark provision is] to protect consumers against deceptive designations of the origin of goods and, conversely, to enable producers to differentiate their products from those of others”.
Int’l Order of Job’s Daughters v.Lindeburg and Co., 633 F.2d 912, 918 (9th Cir. 1980)