What Constitutes Trademark Infringement?

We have had a lot of clients recently ask us whether the websites we build for them violate trademark infringement laws because there is no explicit approval for use of trademarked logos. Will they get into sued for copyright infringement?

The short to this question: no.

I am going to detail when unauthorized use of a company’s property is legally allowed.

Nominative Fair Use

This use follows the theory that if an idea cannot be expressed without referencing the actual copyrighted material, then the item can be used. Two of the most popular uses for this concept are parody and news reporting.

To clarify, pretend that a news station needs to report on a story involving a company. In order to do so, they need to show that company’s logo. Because it is crucial to the programming, the station is allowed to use the logo.

Likewise, if Saturday Night Live wants to make fun of a Disney movie but needs to use costumes based on the characters, they are allowed to do so because there is no other way to properly relay the parody.

Fair use also allows you to advertise a product that you sell. If you put a picture of a Ferrari on your website but you sell Hondas, that would be misleading costumers and using the Ferrari image and name to attract business. But, if you actually sell Ferraris, the use of their logo, name, and cars is acceptable under fair use. This obviously translates to all sorts of products.

Functional Use

There is a second unauthorized usage that is a bit more complex (and controversial) than the first. If you use the trademark as “functional” rather than trying to steal business, then it is legal.

An example for this is the use of cartoon characters. If someone were to wear a shirt with Bugs Bunny on the front, function of the shirt is to inform the public that he enjoys or identifies with Bugs. The purpose is not to confuse people into thinking that you created that character, just to function as figurative thumbs up for the wascally wabbit.

Returning to the Ferrari example from earlier, if you had a personal blog that discussed your love of Italy, you could post copyrighted Ferrari material saying that the function was to show how much you loved the boot-shaped country and its luxury automobiles.

Clearly “functional use” runs a thin line between legal usage and trademark infringement, so it is best to be careful.

Conclusion

So is your website violating trademark infringement? If you are selling the product, then no.

Even logos that are not products for sale on the site, such as the Twitter and Facebook logos, still benefit the company to have them on your webpage. A Facebook logo convinces your customers to check out your Facebook page, which gives Facebook more hits and doubles as advertising for their services, which is also why they let you build brand pages to advertise on Facebook.

If you have a question about trademark infringement, do not be afraid to ask a Trimark representative, but our internet marketing company is well-read on copyright law and tries to avoid using any questionable trademarks when designing websites.

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