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Monday, 3 August 2009

A desiccated follower of trashion

The July-August issue of Informa's ten-times a year Trademark World contains a cover story which rather appeals to the IPKat. "Trash or Treasure", by Andrea Anderson (Holland & Hart) discusses a subject that is pretty novel to European trade mark jurisprudence, being all about controlling your brand in the age of upcycling. She writes:

"Recycling is so ‘90s. What’s hot now is “upcycling,” the creation of jewellery, fashion and objects for the home assembled from used, thrown-out, found and repurposed elements, sometimes known as “trashion". Thanks to the upcycling movement, the eco-conscious consumer can store her writing instruments in a pencil case made from OREO cookie wrappers, carry that pencil case in a purse made from FIRESTONE tyre inner tubes, and accent her home with wall art crafted from TIDE and GAIN detergent bottles. These “trashion” products possess a certain eco-chic cachet, particularly where they display the trademarks and other branding of the original repurposed elements".
The IPKat has long cherished what is presumably a piece of repurposed trashion -- a mirror the frame of which is made entirely of Coca-Cola cans. From a legal point of view it's quite interesting since COCA-COLA and COKE are the only trade marks that are visible anywhere on the front or back of the product. If it were to cause personal injury and the seller could not be found or identified, who better to sue ...? Merpel adds, the distinctive colour and lettering of Coca-Cola's marks make the brand ideal for trashion purposes (see illustration, above right), while many other brands would be far harder to trashionise. Seriously, though, is trashion a danger which successful brands have to handle, or is it just a good laugh? Do let the IPKat know what you think by posting your comments below or emailing him here.

You can view the contents of this issue of Trademark World here.

5 comments:

Duaa said...

what a fabulous concept- I want one of those necklaces!

Clearly the TM is visible and identifiable so would be 'affixed to the product' and 'exposed for sale' and so theoretically could be an infringement.

however the TM holder may face a number of difficulties:
1) the grounds for infringement- we're dealing with similar/identical marks and dissimilar goods. The rights holder would need to demonstrate unfair advantage or detriment.
- I would argue that neither apply – although part of the TM is clearly deliberately maintained for aesthetic purposes, the products are likely to be marketed under their own brand image (some eco-friendly label) so although there would be an element of riding on the reputation of the brand, the real marketing draw for a product like this is the creative use of rubbish and not the product it once was.
- it could be argued that there is detriment in the dilution of the brand and/or the risk of litigation that IPKat mentioned. However, it’s unlikely that a strong brand like ‘Coca Cola’ would lose any of its distinctiveness because of the use of the jewellery and a court is highly unlikely to take the view that ‘Coca Cola’ owes a duty of care to anyone who buys jewellery made from former cans. Even if people think they might be able to sue them – I can’t see how they could succeed.

2) 'use in the course of trade' S10(1) - although the Arsenal v Reed case(s) did say using Trade Marks in a non-trademark sense - as a badge of loyalty - was still an infringement - this trashion problem can be distinguished in a number of ways - Arsenal was decided against Reed because there was evidence of damage to the trade mark as a property right - the marks & products were identical and used in the same way that the rights holder had done to identify the origin of the goods. Here, although the inclusion of the TM is no doubt deliberate, it's incidental to the trade which the product is marketed - jewellery, decor etc. The trade mark is being used in an artistic sense as opposed to in a trade mark sense. I would contend that it's no different from any piece of 3D art like (an untidy bedroom) – that happens to have an item which has IP rights and is sold as a piece of art.

Perhaps the trashion creator could ensure for clarity that the items are sold with a disclaimer - the products sold are the work of ..... and in no way purport to be linked to the products of the 'trash' from which the art is created’. Lets face it, the artist is probably not going to want to be associated with the various multinational products they trash ionise.

Maybe a smart company could register the mark as jewellery etc, commission the jewellery and expand their brand – there’s nothing quite like turning your brand into a fashion accessory for a bit of free advertising! Plus there would then be confusion if anyone else decided to do the same.

Anonymous said...

Thought this may be of interest.
http://www.redbullartofcan.com/#config/home.xml

Joe Scott said...

I blew out my flip-flop,
Stepped on a pop-top.
Cut my heel had to cruise on back home.

It's a personal inj-ree,
I call my attorney
And sue Coca-Cola, the seller's not found.

Silvia Baumgart said...

Own-it has organised a couple of events on the subject matter aimed at the designers of 'trashion' products. The objective was to help them decide what they can and cannot do when recycling other people's designs and trade marks. You can listen to our podcasts here:
16/09/08 Quiz - A Fun Quiz on Re-using and Recycling Design (London Design Festival 2008) - http://www.own-it.org/knowledge/re-quiz-a-fun-quiz-on-re-using-and-recycling-design

21/09/06 - Re-using Design (London Design Festival 2006) - http://www.own-it.org/knowledge/reusing-design

goldenrail said...

Suddenly, every African village hut features the newest trendy decor, without any redecorating.
When the sandals made from old tires show up on runways in France, will there be a new cry of stolen TK?

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