Is Getty Guilty Of Trademark Infringement For Every Photo It Has That Shows A Trademark?
from the 80 million and counting dept
And here we have yet another case of trademark law gone wrong. We’ve mentioned in the past that the company CAR-FRESHNER is so insanely over aggressive with its trademarks concerning its annoying pine tree-shaped car air fresheners that it takes out magazine ads warning photographers not to photograph the iconic air fresheners without permission. This struck us as trademark abuse. Contrary to the claims of the company, a trademark does not grant you all uses of a mark. It was initially designed as a consumer protection law, to help avoid consumer confusion. Unfortunately, aggressive trademark lawyers and the courts seem to keep expanding how trademark is interpreted, and CAR-FRESHNER may be leading the way towards a massive expansion of how trademarks can be asserted.
It appears that the company sued Getty Images for infringing on its trademarks on those tree shaped air fresheners because a few of the stock images available via Getty Images includes the tree. Getty Images responded that this isn’t a violation of trademark law and is clearly fair use, so the claims should be dismissed. Unfortunately, at this stage, the court has refused to do that, and argues that CAR-FRESHNER actually has made a reasonable enough argument that there may be consumer confusion.
Really?!? I’m curious what moron-in-a-hurry is going to look at these images and think, “gee, the idiotically misspelled company CAR-FRESHNER must have sponsored this photograph that some person took in their car.” I just don’t see it. Furthermore, trademark (unlike copyright) has a clear requirement that the mark be “used in commerce.” While Getty is certainly selling these images, it’s ridiculous to think that it’s using the trademark in commerce. It’s just selling photos — millions of them — that photographers have taken. In this case, the “commerce” associated with AIR-FRESHNER happened when someone bought the little tree. Photographing it doesn’t represent a new use in commerce. Except in this court, unfortunately.
And if you think this is just a minor issue, you’re not paying attention. As trademark lawyer, Marty Schwimmer, points out in the link above, this could make Getty liable for every image in its collection that incidentally shows any trademarked item:
Given that Getty has 80 million images, it may have some agita that its fair use defense did not defeat a 12(b)(6) motion, given that perhaps some others of its 80 million photos that may depict recognizable trademarks as well.
While there may be some poetic justice, given reports that Getty is, itself, a rather insanely aggressive protector of copyrights, known to send out letters demanding huge payments for finding incidental parts of its images on websites, we should never celebrate the expanding of bad laws like this.