LEGALLY SPEAKING - Paul Sugden

On Logos as Art

Andy Warhol made the Campbell's soup can a work of art, not just a label to sell condensed soup to the masses.

Then there was that American Express dress that was worn to the Oscars in the 90's.. Are these uses of logos as forms of art and wearable art a legal issue?

Another example of the consideration of logos as artworks arose recently when a Belgian artist tattooed pigs with the Louis Vuitton Logo.

Are these examples artworks or does this all amount to an infringement of a trademark - or an infringement of the copyright in the artistic images used as the logo?

Louis Vuitton does not sell pigs, nor does the company make ham or other food products. The company's products are made of high quality leather (which may include pigskin, cow and other hides used for leather manufacture) with the logo and insignia printed onto the leather. The leather is made into wallets, handbags and suitcases (while 100-metres away from their store in Hong Kong, fakes are being sold, and in Malaysia the fakes are sold as original copies)! . however, in neither case is the same quality leather or finish used in the 'fake' products.

The use of the logo to sell products IS an infringement of the trademark, but the use of the image (in the case of the pigs, the Warhol print and the American Express dress) is not a trademark infringement. Why?

The Louis Vuitton company does not 'grow' their own leather or sell pigs, so in the world of trademarks the symbol is not being used to denote that the pig is a breed created by and/or sold by Louis Vuitton. The same with the Andy Warhol picture of a soup can - it is an artwork and Campbell's do not sell art - they sell soup. With the AMEX dress, that company sells credit services - not dresses. There is no trademark infringement as the mark if registered is not being used to sell the product in the course of trade and it is not being used to show the quality or origin of the goods themselves. Consumers would not be mislead into thinking that the pigs, dress or silkscreen print came from the trade mark's owner.

This does all become an issue of copyright infringement in the visual image however, the image being an artistic work even though it is also a trademark. In copyright terms, if there is a reproduction of the artistic work, where a substantial part of the work has been copied, and if there is an objective similarity to the original work, then from the technical legal framework there has been a copying of the image. In the case of the AMEX dress, no action was brought in the end, and the dress was even sent on a publicity tour. The fate of the tattooed pigs is unknown.

The important issue is that in Wearable Art, using logos to develop a wearable design may not be treated so lightly as the use of logos such as Louis Vuitton would be within the trademark law. Using trademarked and/or copyright images on Wearable Art is crossing into a zone best avoided to save spending money on lawyers.