{"id":6631,"date":"2021-09-06T15:41:16","date_gmt":"2021-09-06T05:41:16","guid":{"rendered":"https:\/\/trademark-registration.com.au\/?p=6631"},"modified":"2021-09-07T17:04:37","modified_gmt":"2021-09-07T07:04:37","slug":"trade-marks-artwork","status":"publish","type":"post","link":"https:\/\/trademark-registration.com.au\/information\/trade-marks-artwork\/","title":{"rendered":"Mistakes to Avoid When Using Trade Marks in Your Artwork"},"content":{"rendered":"\n

Bansky and Andy Warhol are among the many famous artists who have used recognisable trade marks in their works. These works often satirise the brands associated with the trade mark, providing insightful critiques of the consumer market. However, if you use a registered trade mark without the authorisation of its owner in your art, you run the risk of committing trade mark infringement. To avoid infringing on the exclusive rights of a trade mark owner, you should be aware of the following mistakes artists often make when using registered trade marks in their work.<\/p>\n\n\n\n

Understanding Trade Mark Infringement<\/h2>\n\n\n\n

As you may know, trade mark protection allows owners to prevent others from misusing their marks. Under Australian trade mark law, trade mark infringement can arise when someone uses an identical or similar mark to an existing registered trade mark concerning similar goods and services. For example, a tech startup that sells mobile phones and uses a half-eaten apple as their company’s logo would likely be infringing on Apple Inc.’s trade mark rights.<\/p>\n\n\n\n

When using registered trade marks in artworks, there may be a chance that you commit trade mark infringement<\/a>. This could arise in the instance where you print your art on certain merchandise or mass-produce your artwork. For example, you may produce an artwork depicting the ‘Gucci’ logo and print the artwork on clothing. In this instance, this could lead to trade mark infringement.<\/p>\n\n\n\n

Fair Use Exceptions<\/h2>\n\n\n\n

There are, however, some fair use exceptions to trade mark infringement. Under these exceptions, you do not necessarily commit trade mark infringement. This is the case even though you might have used a registered trade mark without the trade mark owner\u2019s consent.<\/p>\n\n\n\n

1. Satirical Use<\/h3>\n\n\n\n

As you likely know, art provides a creative outlet to parody real life. When artworks depict recognisable brands in a satirical way, it is unlikely consumers will confuse this as a reproduction by the brand themselves. For example, an artwork like Banksy’s may depict Mickey Mouse’s signature silhouette. This would unlikely be confused by consumers as an artwork made by Disney themselves.<\/p>\n\n\n\n

In this sense, an artwork that parodies brands generates humour rather than indicates the artwork\u2019s origin. For this reason, the Trade Marks Office and the Australian Courts would likely recognise an artist’s satirical use of a registered trade mark would not constitute a typical ‘use’ of a trade mark for commercial purposes. However, satirical use of a trade mark, otherwise referred to as nominative fair use, can also arise where:<\/p>\n\n\n\n