We Are All In Trouble, Trademark Protection Gone Wild

(Screenshot from their Facebook page)

In September a lawsuit was filed against Getty images. You can find the filing right here.  The Car Refreshener Corporation filed a lawsuit for Trademark violation of the famous Pine Tree shape. The image(s) in question show a photo taken from the inside of a car through the window and the outline of the tree is clearly visible and recognizable.

Take a look at this idiotic and really stupid idea, waste of time and money:

RELEVANT BACKGROUNDA.Plaintiffs’ Claims
Generally, liberally construed, Plaintiffs’ Amended Complaint alleges as follows.Plaintiffs are engaged in the business of manufacturing and marketing products, such asair fresheners, using distinctive Tree designs as trademarks and corporate identifiers. (Dkt. No.28 at ¶ 14 [Plfs.’ Am. Compl.].) In addition to owning federal registrations for the famous Treedesign Marks (collectively the “Tree Marks”), Plaintiffs have common law trademark rights tothe famous Tree Marks, which are used in commerce in connection with various goods. (
 Id 
. at ¶¶15-18, 21.)Defendants are engaged in the business of licensing digital media through their websiteto customers. (
 Id 
. at ¶ 9.) Defendants have infringed on Plaintiffs’ Tree Marks by “promotingand licensing digital media for commercial use through [their] Web Site(s) that included one or more tree designs which are identical to, virtually indistinguishable from and/or confusinglysimilar to Plaintiffs’ distinctive Tree . . . Marks.” (
 Id 
. at ¶ 23.) In addition, “Defendants engagedin their unauthorized and complained of conduct with full knowledge of the value and fame of the Tree . . . Marks, and long after the Tree . . . Marks had become famous.” (
 Id 
. at ¶ 26.)Based on these (and other) factual allegations, Plaintiffs’ Amended Complaint asserts thefollowing eight claims: (1) federal trademark infringement; (2) federal false designation of origin; (3) common law trademark infringement; (4) common law unfair competition; (5)contributory trademark infringement, unfair competition and dilution; (6) vicarious trademark infringement, unfair competition and dilution; (7) federal dilution; and (8) dilution under NewYork State law.

Here is how this affects you. LeCourbusier already won a lawsuit for that very thing against Getty Images. (Note: At least this is what I know but I was unable to find the ruling to verify this. If you have docs that you can share, let me know). That means that anyone in their right mind will never photograph a room with a LeCourbusier chair, again. As the former owner of an interior/architectural stock syndication I am shaking my head. They really think that a room with that chair in it is uniquely theirs? Fine, do it that way but from here on forward I won’t buy anything LeCourbusier because I cannot support this nonsense. With case law on file virtually any company that has a Trademark that is featured in an image can now come after you and your stock partners and sue you for trademark infringement.

I have mixed feelings about Getty Images but in this case I feel sorry for them. Because they are the biggest and most visible company out there they are the first ones to get served with these lawsuits. Why? You won’t get sued as an individual, there is nothing to ‘get’ from you. But Getty is an entirely different story.

Many American and cultural icons are trademarked. If we can’t photograph people drinking, eating, driving, playing, wearing clothes, being in public place, basically living their lives we are all in trouble. Your creativity is greatly hindered, the story isn’t told as it should be because we worry about lawsuits and not the message.  You will spent more money in post fixing potential landmines.

What I don’t get is this: wouldn’t you think that these companies are thrilled that we use their products and feature them? Doesn’t this enhance their desirability, and broaden their reach? Do they not know that we can start a viral movement like in the case of NetDicks, oops, Netflicks that can cut a companies value in half because they upset the very people that should buy their product or service? Times have changed, we are no longer powerless, with enough people behind an idea we can change the outcome by course of public opinion.

It’s a massive wake-up call for all of us. We have to organize and stop companies like this from suing our industry because their products happen to be in the image. It is less about the product but what these Tree Air things stand for. As icons they say something about the person who uses it, it’s a feeling, a concept.

What can you do? Boycott them and stop buying those air refreshers and spread the word.  Even better, go to their Facebook page and tell them how you feel about this.

Let me know what your thoughts are. Are they right or wrong? What do you think this will do to our industry? Is this a good idea to protect their brand or are these guys totally off?

 

Comments

  1. Ken M - New Orleans says

    You're right. As a photographer and a consumer, these companies are crazy. Guess I'll have to go through my entire stock and make sure I don't have any of those freaking chairs or air freshners (dare I even use their proper name for fear of infringement??)

    Thanks for bringing this to our attention and the link to their facebook page. I've already left a comment there, too.

    Hope their freaking business raises a stink!