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Trademark FAQ


What is a Trademark (Service Mark, Trade Dress, Trade Name, etc.)?

 

Can I take photographs showing buildings that are registered trademarks?

 

What can I do with photographs that show trademarks, logos, or buildings or props that are themselves registered trademarks?

 

What is a Trademark (Service Mark, Trade Dress, Trade Name, etc.)?

A trademark is a distinctive mark (which can include words, names, symbols, designs, combinations of them, etc.) that a manufacturer attaches to its goods as a symbol of authenticity, to distinguish its goods from others'. They are often accompanied by a symbol like ™ or, if they have been registered at the federal level, ®. To be valid, marks must be actually used in trade, and they can be lost through lack of use. Registration is not required for validity, at either the state or federal level.

 

Marks can also be used in connection with services as well as goods and can consist of building designs, packaging, etc. Trade names are similar. Registration of marks requires that specific categories of goods and services be identified in the registration, and the registration protects the mark only for those classes of uses. Use of words, images etc. that have been trademarked is prohibited only if the use would be likely to confuse someone as to the origin or authenticity of a product. Descriptive or non-commercial uses of trade marks, names etc. may be permitted under the doctrine of fair use.

 

Can I take photographs showing buildings that are registered trademarks?

As long as you are making the photograph from a public vantage point, you have the right to go ahead and shoot.

 

But first, read the next question.

 

What can I do with photographs that show trademarks, logos, or buildings or props that are themselves registered trademarks?

Generally, such photographs should be safe for editorial uses. You should make sure, however, that you specifically point out in your paperwork that you do not have any releases or permissions and, if possible, have the client indemnify you against any claims arising out of their use of the photograph. Remember that violations of third-parties rights come primarily from the use of the photograph, not the photograph itself, and you have no control over that use once you have agreed to license it.

 

When you get to commercial use, things become a lot more tricky, and there is no answer that can apply in the abstract — it will always come down to all of the details of the usage, including what the usage looked like. Let's assume the buildings have trademarked material on them, like names, logos, etc., or may even be registered as trademarks, themselves. Not every use of a trademark is a trademark use. Re-read that sentence carefully. What it means is that, just because a trademark appears in a photograph, that does not mean that the use of the photograph violates the rights of the trademark owners.

 

Trademarks started out, not as property rights, but as a form of consumer protection to keep the public from being confused as to the source of a product or service. So, if you have a photograph of Ford corporate headquarters and use it in a brochure for, let's say, Dupont, you have probably created the impression in the public's mind that there is some affiliation between or endorsement of the two companies and/or their products by the other. A reader might well assume that the two companies are related, or that Ford cars use Dupont paints or plastics, etc. This would most probably violate Ford's trademark rights.

 

On the other hand, if you had the same photograph in a brochure for the Detroit Chamber of Commerce, most people would probably assume that the only relationship between the two is that Ford is located in (or near) Detroit and that the Chamber's function is to boost business in the Detroit area. That does not seem likely to violate Ford's rights.

 

The same is true for trademarked props. A still life showing writing paper and a Mont Blanc pen would probably be fine to use on a brochure for a law firm or literary agency, but seems likely to cause problems in an ad campaign for Crane stationery. If you took a photograph of a Harley-Davidson motorcycle and sold it as an uncaptioned poster, the chances are that it would be legal. If you added the Harley-Davidson Bar and Shield logo to a corner of the poster, most people looking at it would probably believe that the poster was an officially produced or licensed product of Harley-Davidson, and you would probably be liable for trademark infringement.