Brands are a part of our everyday existence on many levels. The artistic use of trade marks is varied, creative and sometimes provocative, with blurred boundaries between lawful fair use and unlawful infringement. For Warhol’s iconic series of Campbell Soup Cans paintings, freedom of expression prevailed and in fact, the artist even received fan mail from Campbell's Product Marketing Manager!
Campbell’s Soup Cans by Andy Warhol, 1962.
Displayed in Museum of Modern Art in New York.
(Photo credit: Wikipedia)
Our perceived affinity to brands has also created some unusual situations. In France, a family court held that naming a child "Nutella" would bring about teasing or disparaging comments contrary to the child’s interests. The tragic events in Paris at Charlie Hebdo led to numerous trade mark applications for the slogan #JESUISCHARLIE. The Benelux Office, French INPI and OHIM all refused the registration not only because the slogan could not be considered a trade mark but because granting protection would be adverse to freedom of expression, the very rationale behind the slogan in the first place.
Genericised brands are now omnipresent. BIMBO is probably the wrong word to designate bread in English-speaking countries, but it is a very successful brand in Spain. In France, you will be offered a handkerchief if you ask for a KLEENEX, but in Greece asking for KLINEX will only get you chlorine bleach. From a legal perspective, no one’s cheering: such brand names are victims of their own success. When a mark becomes the common descriptor of the goods and/or services it designates, enforcement may turn into a slippery slope.
Public engagement with brands entails the need for a balancing act between trade mark rights and freedom of expression which will continue to challenge brand owners for the foreseeable future. Our digital and largely interconnected world has given rise to a new breed of consumers with new platforms to exercise their power over brands, to get the conversation started and to keep it going.
As part of an overall study of the evolving relationship between brands and consumers, three aspects of the intersection between trade marks and public discourse are examined in the paper "Speaking Freely: Brands, art, public policy & genericide".
Stella Syrianos, Robic LLP, Lawyer and Trademark Agent, Laetitia Lagarde, Associate, Baker & McKenzie LLP and Nikos Prentoulis, Prentoulis Lawyers & Consultants. The authors are all members of the IP Outer Borders Team. You can read all the articles in this series on the Team’s page on the MARQUES website.
Issue 062
IP Key has recently updated the Roadmap on trade mark protection in China, taking into account recent changes in the legislation
WIPO recently published the following Madrid Information Notice regarding international registrations designating the United States
Catch up on all the trade mark and design news and analysis on the MARQUES blogs and social media channels. Here are some recent highlights