Trademarks

Using Logos and Brands in Photographs


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

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.”
iStockphoto.

Still here? Then let’s look into trademarks.

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

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.

Lanham Act

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

Avoid Confusion

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)

Next page: Trademarks FAQ

Comments

Comments


Reply by Thomas

April 14, 2015

I am a bit confused, but I must say I’m loving reading all your info including "Buildings Copyright and Trademarks." Which you have info about the US Copyright Act, saying you can take pictures of buildings and sell them. What I’m truly wondering is Las Vegas Casinos and their signs. A good example of a cool sign is my picture of The Hard Rock Café Giant Guitar. Both buildings and signs are visible in public areas.

But from what I understand about the subject above, I once had an item that would fall into the logo category. From a storage auction I acquired a beautiful picture of the Old Harley Davidson plant which the Harley logo was clearly seen in the photo.

So would that particular Harley Davidson building be an illegal photo, or can you take such pictures and sell them. Or a picture of a baseball stadium taken from blocks away (I’m thinking a baseball stadium is a building.) But like I said above, I’m really curious about Las Vegas Casinos and their Beautiful signs.

Thank you,

Thomas


Reply by Andrew Hudson, PhotoSecrets

April 21, 2015

Hi Thomas,

Trademark law is very narrow, only protecting a trademark from misuse as a mark of origin which leads to customer confusion over the source of goods. You can photograph a trademark, but you can’t imply that you are affiliated with that trademark.

A good case on this issue is Rock and Roll Hall of Fame. A photographer was sued under trademark law for selling posters featuring his photo of the building and the title of the building. The U.S. Court of Appeals for the Sixth Circuit sided with the photographer, saying that the museum had not “established a valid trademark in every photograph” due to “the Museum’s irregular use of its building design” and the public does not recognize “the Museum’s building design, in any form, let alone in all forms, as a trademark.”


Reply by Erik Ulstad

March 22, 2013

How about something like using the name of a ski run at a ski area? The name of the ski run would be partially obstructed. I wouldn’t have the logo of the ski area anywhere in the image.


Reply by Rahim

January 30, 2013

what if the photograph has a fraction of a trademark text for example: if [Happygolucky]

is a trademark posted on a building, i take a pictur of the building with only [ppygolucky] visible in the picture, can this company harass me about trademark infringement?


Reply by Andrew Hudson, PhotoSecrets

March 5, 2013

FRACTION OF A TRADEMARK

Hi Rahim:

That is OK, you can use such a shot. The company can only legally challenge you if your photo implies that you are the source of their goods or services, or you are endorsed by, supported by, affiliated with, or otherwise connected to the company. It sounds like your photo does not imply any such thing so you are probably OK.

Andrew


Reply by Awais Malik

January 22, 2013

Thanks,i was confused from all these terms but now i am totally clear about Product,Brand,Trademark,company logo.


Add Your Comment

Comment:

Name:

Email (optional):

Submit your comment: