| Trademark > A Mark used in Trade Trademarks are typically associated with commerical products, but in certain circumstances trademarks can be important for artwork as well. First, some basic trademark concepts: |
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| 1. The Mark A trademark must consist of a valid mark that identifies a product’s source and it must be used in the course of commerce. A trademark is a word(s), phrase, symbol, design or combination of them, which identifies the source of goods (products) and distinguishes them from the goods of other makers. The source is usually the maker or the company selling the goods. Service marks a related to trademarks and indicate the "brand" of services provided rather than goods. Trade dress is where the form or styling of packaging or the product itself functions as a source indicator. Registered trademarks are protected federally by the Lanham Act. Unregistered marks, along with other trade matters are protected, typically, by state unfair-competition laws. A trademark is most familiarly a product name, a logo, or other features that distinguish a product from others. Typically, a trademark is used by a manufacturer of a product to "brand" it. A mark is also used to differentiate a product from those of another seller. An artist’s trademark may be a word or a phrase. It may be a logo associated with the artist’s name. Or it may be some other indicator of the artist as the source for the artwork. It may be an image of the artwork itself. In essence, the artist is the brand and the artwork is the product in this context. In the commerical world, if you consider sneakers manufactuers, certain images will commonly come to mind. If you see the trefoil or 3 stripes, you associate the shoes with Adidas. When you see the swoosh symbol, you know that the shoes should be made by Nike. As a consumer you may associate certain levels of quality, fashion status, or other expectations with each particular manufacturer. The logo permits Company X (for example) to tell a potential buyer that the item is of the quality that one would expect from X. It came from the X factory, made by X’s workers, and made to X’s standards. A buyer may decide to buy X company’s shoes based on her belief of the company's reputation of quality, fashion status, and related considerations, in response to the presence of the mark. In the context of this website, the orange artuntitled logo in the corner of the pages is the trademark. Its location on the pages indicates that the source of the page content is from artuntitled (and its associated editor/author). The conceptual basis for trademarks is that of consumer protection—based upon your accumulated knowledge of a brand, you the consumer should get what you expect of the brand. (In practical reality, corporate logos are valuable property and whether the ideal of consumer protection is the true primary purpose is arguable). The unauthorized use of another’s trademark is a violation and this is called infringement. When another person or company uses a mark that is the same or confusingly similar to that of another, without permission, this is infringement and the violator may be sued for damages or a court order to stop the use of the mark. This may happen in a variety of circumstances, including the case of counterfeit goods or when the second user’s mark is so similar to the first that consumers may be confused them. |
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II. In Trade The second key to a valid trademark, is that the mark must be used in commerce. Commerce is essentially a synonym for (use in) business. Generally this means that the trademark is related to sales or associated with the product that is offered for sale in the marketplace. This may seem simple, but there are some intricacies to the concept. A trademark must be used legitimately, for the purpose of identifying the source of the goods (artwork). |
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| A trademark may not be used simply to reserve rights in the mark (I touched it first, so it’s mine), but rather, must be used in actual commerce. For example, when the use of the trademark is purely internal to a company (not released to the public), this is not commerce and so the trademark is not valid. When a trademark is found to be invalid, then the user cannot prevent others from using it. In regards to protecting artwork, it should be considered what use in commerce means in the context of art and the artist's business. Most simply, the display of artwork is often a solictation of offers to buy the artwork. Commerce could also include the promotional materials that artists often send out to galleries, other organizations or individuals, when they are related directly or indirectly to sales. Essentially, the promotional materials are offering products (artwork) for sale (direct) or exhibition proposals (indirectly). The process of sending promotional materials to curators in the hopes of obtaining an exhibitions opportunity (and hence, sales) is an important marketing process for artists. Other forms of promotion, including websites, are another method that may be construed as being a solicitation for direct sales or proposals for exhibitions. In these ways, artists can be considered to be using a trademark in commerce. However, it should be considered that this is not a blanket concept–any type of use at all will not automatically be considered to be in commerce. |
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| Artworks and Trademarks An (unregistered) trademark is created when a valid mark is used in trade on or in association with a product. The trademark may be challenged if someone else is already using it, but otherwise, a trademark may be locally used and enforced. In the context of an artist's commerce activities, the trademark may be the artwork itself (indicating the artist as the source), or it may be the artist's name (indicating the artist as the source, much like a brand). Perceiving a work or a name as a trademark may be useful for an artist who is marketing his or her work and is concerned with creating a specific indicator of himself or herself as the source (artist) of the artwork. When an artist sends out promotional packets to galleries, publishers, and other commercial organizations, the artwork and the presentation of the promo materials themselves may be designed with intention of function as trademarks (or perhaps the trade dress) of the artist. Another potential reason for asserting trademark protection of artwork is illustrated by a lawsuit filed by New York artist David Wojnarowicz. Wojnarowicz’s artwork was copied by a group that found his work offensive. The group printed his artwork in a pamphlet and distributed it as propaganda that disparaged the artwork. Wojnarowicz claimed that the trademark of his artwork was violated by the group’s use of his work (along with copyright infringment and other legal claims). The trademark claim was ultimately rejected by the court, but the case illustrates how an artist could use a trademark to further protect his artwork in similar situations. See more about the Wojnarowicz case. A Petit Sensation; TM and style As discussed in the main on the subject, ideas cannot be protected by copyright. Considering what an artistic style is; a distinctive look, with consistent aesthetic and methods of expression from work-to-work. In essence, a style might be defined as an individual's repetitive method of representation. A method, however, is essentially an idea and neither methods, nor ideas are protectable by copyrights. Since copyright is unavailable for protecting a style, a distinctive look, trademark protection may be a possibility. Realistically, protecting style by filing a trademark application is probably not an option for most artists and may not be even possible, except in exceptional situations, as mentioned in the preceding paragraph. However, in the event that some sort of infringement has already occurred, it may certainly be explored along with other forms of legal protection. (A Design Patent may be appropriate in some circumstances, but this exceeds the scope of this article). It should be mentioned that trade dress laws may related to artwork as well, but this area of the law is not well settled. |
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| Considering the Mark Other than the artwork itself, the question is of what, exactly, might an artist's trademark consist? A general consideration is that it should be something that conceptually represents the artist as the source of the work since that is an important function in the marketplace. It may be a name or a variation, a business name, or a logo. To be a valid mark, however, there are certain legal considerations. When assessing the validity of a mark, one thing that is looked at is the strength of the mark. Strength is essentialy the ability of the mark to do its job, that of clearly indicating the source of the goods. There are several categories of relative strength, ranging from arbitrary or fanciful (strongest) to generic (weakest). Arbitrary/fanciful are those marks that have no apparent conceptual relationship to the product, such as the mark(s) used for Apple Computers. A generic mark is one that tends to indicate the type of product rather than the source. A mark that is termed generic may be used, but it cannot be protected. For instance, if a maker of canned broth decides to call his product "Soup," he can do that. But, because it is such a common word, a generic one, he cannot claim it as a trademark and prevent others from using the word "soup" on their own broth products. In essence, such a restriction on the word "soup" would inhibit free-speech. Other soup makers would be unfairly restricted from describing their own products if the word "soup" were walled-off from public use. The name of this website, artuntitled.com, is in part a satirical reference to the issue of genericism. (The editor believes that it is not generic in this case however, since it references a generic artwork title, but is actually a website...) At the mid-point of relative strengths of trademarks are those considered to be merely descriptive or suggestive. Descriptive would be something like "Tasty Tomato Soup" and suggestive would be more indirect, such as "Mom's Kitchen." A key point to consider is that trademarks deal with products and potential confusion. So, the aformentioned Apple (computers) would not conflict with a food product, for example.1 In any case, you may have guessed that using a common proper name as a trademark is a little more complicated than it might seem intitally. You can use your own name attached to your artwork (logical, but also provided for in the Visual Artist Rights Act). However if you want to register it, generally it can only be registered if the trademark office considers it to be distinctive. The more common the name, the less likely it is to be distinctive. |
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Copyright vs. Trademark Trademarks differ from copyrights in several ways. Conceptually, copyrights protect the owner’s ability to control the object’s reproduction. Conversely, trademarks protect the consumer by indicating the source of the object (goods). As you can see, the intent of copyrights is to benefit the owner, seller, artist; the intent of trademark is to protect the public, the consumer, or buyer. At least, that is the theory. |
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Trademarks are intended to be used in commerce (in business), in the marketplace. The purpose of a trademark is to identify the source of the product, that is, who is selling the product, who made it, etc. In contrast, copyrights need not be used in trade. The trademark must be used in trade and if there is time when it isn’t used, the trademark right is lost and another may use it without penalty. |
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Trademarks do not have an expiration date–so long as the mark is used continuously in commerce, it is protected from infringement. (Renewals may be required). Copyrights generally expire 70 years after the death of the author/artist. |
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Trademarks may either be registered (federal) or non-registered (state/regional). Registration provides a greater protection for a larger geographic area. Copyrights need not be registered2 and the copyrights accrue (begin) automatically when the work is created. Trademark protection begins when the mark is used in commerce, so long as the mark is valid. |
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| It may be interesting to consider an actual work of art as a trademark to protect against copying; essentially extending the copyright term indefinitely. This is a tactic that might potentially be used for works when the copyright has expired, but for this reason, is not relevant to recently made artworks. Since copyrights extend beyond the life of the artist, this approach is limited. Also, because of trademark’s purpose as a source indicator, trademarking a work to functionally extend copyright protection may be an improper use of a trademark. Nevertheless, this possibility exists and is more likely to be attempted by corporate owners of trademarks and copyrights. To illustrate this concept, let’s say that an artist is considering incorporating a reference (sample) of an image for which the copyright might have expired… perhaps a well-known 1930’s cartoon of a black-eared mouse.3 Even if the artist is certain that the copyright has expired, it may be wise to also investigate the trademark status of the image as well. Corporate owners of trademarks (and copyrights) are highly protective of their marks and an artist may want to consider the possible legal ramifications before proceeding. It should be noted that there are also some free-speech / fair-use exceptions to this point. |
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| Other Considerations Trademark owners have the additional responsibility of policing their marks. Owners must take measures to prevent others from using their trademarks. Owners must also ensure that those who have permission to use their marks (licensing) do so in a way that meets the quality standards of the brand. If the brand becomes unreliable because of unsupervised licensing or rampant free use, the trademark rights may be lost. Trademark rights may also be lost if the mark becomes generic. A mark may begin as a distinctive mark, but over time become generic. This can occur when, for example, a brand-name becomes widely known to the public as the actual name (identifier) of the object, to the extent that the brand name represents the product, rather than its source. The following brand-names have NOT been found to be generic, but they provide an illustration for this concept: Kleenex, Frisbee, Xerox, Coke… These products' trademarked names are still valid trademarks. The corporate owners are aware of the public's tendency to use them in a way that is not associated with the respective brands. To protect against the marks becoming (legally) generic, the owners take certain measures. However, some former brand-names have been found to be generic and as a consequence, any manufacturer may now use the name/word to identify their own product. Examples of generic but formerly trademarked brand-names include: Aspirin, Escalator, Cellophane, Zipper. Because trademarks are primarily related to typical large scale commerce, a significant portion of this broad topic is not useful for visual artists. The intent of this article is to present significant points that are relevant to understanding the area and some issues that have a connection to the business of being a visual artist. For more detail, see the following articles and the resources section following. |
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More About Trademarks Capsule Summary: Wojnarowicz vs. American Family Association Visual Artist Rights Act Resources: U.S. Patent and Trademark Office: http://www.uspto.gov/main/trademarks.htm Trademarks may now be filed online at: http://www.uspto.gov/teas/index.html An article about choosing a domain name: http://smallbusiness.findlaw.com/trademark/trademark-domain-names/domain-trademark.html |
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1There has been an interesting, ongoing dispute between Apple (Computers) and Apple records (U.K.). |
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