Not too long ago, our friends over at Refinery 29 spoke to the legality of fashion brands' use of non-fashion logos (think: Opening Ceremony's use of the Kodak logo, Joyrich's Coke branding, etc.), coming to the conclusion that if a designer incorporates a logo in a way that might cause confusion about whether it was sponsored, he or she runs the risk of being sued. We want to take this a step further since logos, which have fallen in and out of consumers' favor in waves over the past several years, seem to be one trend that just won’t seem to die out. And implicit in this trend is the emergence of a “logo subculture” consisting of designers who are not only using the logos of one company, but multiple logos from various sources. The end result is a collage of brand trademarks, which presents us with the painfully obvious question: “How is this use legal?”
Recently there are many examples of fashion labels repurposing the logos of brands other than their own. This take on branding has been used in the collections of Opening Ceremony, Joyrich, (as I mentioned above), Bobby Abley, and Jeremy Scott, of course. Joyrich found a sartorial way to revive the vintage Coca-Cola logo and Opening Ceremony paid homage to the Kodak logo in some of its recent wares. Jeremy Scott, the recent trailblazer of this movement, has shown collections that proudly display the logos of Moschino, McDonalds, Hershey's, and the likeness of Barbie and Spongebob Squarepants.
Although the aforementioned designers have only incorporated a single logo from another company on each individual garment, a small group of designers are using various logos, from multiple companies, on a single garment. For sometime now, the work of designers like Wil Fry, Heron Preston, and Peggy Noland -- all seemingly inspired by Raf Simons' Spring/Summer 2003 use of conflicting logos -- have been changing the purpose and effect of logos in fashion. Their “mash-up” of multiple logos has transformed a company’s trademark into the canvas of a garment rather than the focal point. Wil Fry and Heron Preston’s clothing, for instance, has included the logos of companies that range from Maison Margiela in Fry's case to Home Depot for Preston. These logo mavericks have sparked a new legal question: Whether a designer’s inclusion of multiple logos in his design is afforded legal protection?
Assuming that Fry, Preston, and others have not negotiated a licensing deal with the companies whose logos form the backdrop of their clothing (as we know they did not), one has to wonder how they have evaded trademark infringement suits. There are two possible theories that have allowed these designers to avoid the legal wrath of companies like Chanel, Rodarte, and Issey Miyake. 1) It’s very likely that the use of numerous logos at once (think: Chanel, Givenchy, Margiela, Dior, etc.) ensures that a reasonable consumer would not be confused into thinking that one or any of those fashion brands is responsible for the garment on which they appear or are affiliated with the creator of that garment. If that doesn't work, there is option number 2) while the use of these logos is, in fact, trademark infringement, such use qualifies as a “fair use” of these companies’ trademarks and thereby, lets these designers off the hook, so to speak.
First and foremost, the primary function of a trademark is to serve as a source identifier for a product or service. One of the primary rights a trademark owner has is the ability to bar others from using their mark and defend against others with confusingly similar marks. This likelihood of confusion standard is what may provide the designers with some leeway, as there certainly is an argument that given the number of logos that appear on each of the t-shirts in question, no one could really be confused into thinking that those brands are affiliated with the design.
Raf Simons Spring/Summer 2003 (left) and Heron Preston (right)
But what if Google asserts that consumers are likely to be confused as to the source of one of Heron Preston's tees. Well, Preston has a defense he can assert: fair use. The use of trademarks by third parties in advertisements, news, and labels is commonplace. Although the new use of trademarks by designers like Wil Fry are not quite comparable to news reports or advertisements, their treatment of the marks could be legitimate.
U.S. trademark law recognizes that some uses of another’s mark, without the owner’s permission, can be considered an acceptable “normative fair use.” Nominative fair use may be the case when you see a company’s trademark used in news reports, parodies, and comparative advertising. This type of fair use occurs when someone uses another’s trademark to specifically refer to the trademark owner. But like any legal defense, there are standards that have to be met for nominative fair use. First, the use has to accurately refer to the trademark owner. Also, only so much of the trademark can be used to identify the trademark owner. Finally, the use of the trademark should not suggest the trademark owner’s sponsorship or endorsement.
In order for the designers’ use of logo mash-ups to qualify as a fair use, that use will have to hold up against the nominative fair use factors. Since the logos displayed on the clothing clearly refers to the many trademark owners, the first factor is met. Although the designers could have used the name of the brands instead of their logos, this would not have conveyed their intended message. The logo mash-up is interesting because it uses the stylized and pictorial logo images. I think we can all agree that the alternative, a basic t-shirt of logos written in Times New Roman, is not aesthetically pleasing. Also, it is seems safe to assume that the third factor is also met. Unless consumers believe that trademark owners like Maison Margiela, Harley Davison, and Nascar aligned to make a collection of “logo collage” t-shirts, there is no suggestion of sponsorship or endorsement. As such, it appears that logo mash-up apparel will live on under the protective banner of trademark fair use.
Taylor Moore is a second year student at Howard University School of Law in Washington, D.C. During law school she has worked as a research assistant to professors and attorneys in the field of intellectual property.