Using Trademarks Us Artistic Works

Not necessarily to read the following lines

The relationship trademarks us between brands and artistic expression is a very uncertain area of ​​the law for Canadians. Most of the case law on this issue are the decisions of the circuit courts of the United States, forcing them (but not required) for our needs. trademarks us

However, if we put aside the fact that the first law of change does not correspond exactly with the freedom of expression "Canadian criteria (as defined in section 2 (b) of the Charter), there are some recent decision the U.S. that can provide an trademarks us overview of the motivation of a Canadian court could consider in future similar situations.

Marks may be reproduced without permission of artwork?

Recently, in a major study, the Court of Appeals for the Eleventh Circuit described the trademarks us trademarks of a university including paintings, prints and calendars artist that freedom of expression attracts protection of the First Amendment.

The facts of this case are very simple - the artist had painted the famous football scenes involving the University for many years. His performances have included a number of brands of the University, including uniforms, helmets, jerseys, and the colors of the most popular teams.

For nearly a decade, the artist and the university has signed a number of licensing trademarks us agreements to produce specific items representing the famous market of the football scenes. Meanwhile, the artist continued to produce trademarks us paintings and prints which argued that it was not subject to any license agreement.

Several years later, the university said that the artist would have to authorize all products from Alabama because they were university brands. He agreed, saying he did not need permission to present historical events, as long as the use of the marks is limited to his original works.

Ultimately, the Circuit Court of Appeals held in favor of the artist in terms of prints, paintings and calendars. Although not appeal the lower court's characterization of the cups and other "sensitive products" as more "commercial speech" trademarks us art (which changed protection of the First Amendment),

the Court of trademarks us Appeals decided to reverse this decision due to problems not solved material fact (*** held upfront license agreements to contain ambiguous terms, so that the court rejected the argument that these agreements the University prohibits trademarks us the use of artist brands regarding the two categories of goods )

The report decidendi Court stressed that the decision violates a trademark expressive artwork, must have an adequate measure of public interest in free expression against the public interest to prevent consumer confusion - that being said, the court held that the artistic use of the

mark does not violate the law Latham (* the American equivalent of the trademarks us Trademark Act) if (i) the use of the mark has no artistic relevance to the underlying work whatsoever, or have any artistic relevance, (ii) the work must explicitly mislead as to the origin of the content trademarks us (which gives us a test in 2 parts a Canadian court could find persuasive in future cases)

trademarks us With the line above reasoning is simply to persuade Canadian courts, is an academic question at this point if the argument of section 2 (b) can be mounted in support of an artist with unauthorized brands in Canada. Interestingly, the defense trademarks us was accepted and rejected in other situations related to trademarks.