This article is a case study about alleged Artist infringement of a trademark deriving from this tweet the (“Tweet”).
The artist is @bigcomicart (the “Artist”) who a via SuperRare notification email of complaint from Lamborghini allegedly infringed on Lamborghini’s trademarked logo, through its placing in the gif Lambo to the 🌚 (the “Artwork”).
The purpose of a trademark is to protect the goods and/or services of its owner. Therefore, on registration, the owner will need to make specific class entries of which good and services they want to be registered and protected from third parties. In this case study we are analysing whether the Artwork would breach English IP law were a similar letter to be sent by Lamborghini’s English lawyers.
We have researched/reviewed around 80 “Lamborghini’” trademarks and their classes. The relevant logos we think apply and which are used in the Artwork are:
1) ( UK00903495579 ); and
2) (Filing number 003495579 ).
Neither Lamborghini trademark filing above seeks to protect art as good or service. Therefore, the provisions of Trademark Act 1994 are not applicable in our opinion.
This is because, despite the logo being used in the Artwork being identical, it is not used in relation to goods or services identical with or similar to those for which the Lamborghini trademark is registered (s10(1)). Also, there will not be a likelihood of confusion on the part of the public, which includes the likelihood of association with the trademark (s10(1) and (2) Trademark Act 1994) between someone using the Lamborghini logo in a piece of art with a digital punk aesthetic of late 90s/early noughties and Lamborghini’s trade in super cars or car parts or even expensive clothes.
Moreover the title of the Artwork is a reference to crypto slang “Lambo to the 🌚[Moon]” and the use of the Lamborghini’s logo is there to reinforce a cultural reference. A Lamborghini or “ Lambo” is “ slang for the type of car that many crypto enthusiasts aspire to buy when their digital assets “moon” — or rise in value substantially ”. Additionally and more importantly, the Lamborghini logo is a minor part of the Artwork and a device to reaffirm this cultural reference, and thus in our view it is not taking an unfair advantage of Lamborghini’s brand (s10(3) Trademark Act 1994). It is the opposite, it is argued it enhances the Lamborghini brand in the digital cultural sphere!
If there is any infringement it would be in copyright not in trademark law. That said there would be a defence of Fair Use available to Bigcomicart, we will consider this point in our next article, so watch this space.
We think that the Tweet shows that Lamborghini’s lawyers panicked (and would have wrongly interpreted Trademark rights under English Law). because of the potential value NFTs have and Lamborghini was obviously keen to ensure they had a share of any profits. In our view the Artwork cannot be said to have devalued the Lamborghini brand or reduce the value of any future Lamborghini NFT it would create.
The Tweet is a frightening example of large brands trying to exercise their legal muscle without proper legal justification. Trademark protection should not prevent the selling of one-off items of Art which is not within the class protected by registration of the trademark.
IP law, specifically copyright law is often in conflict with of the idea/tradition of appropriation in Art. It is predicated on a monopolistic form of ownership. Trademark law, was never meant to be applied to prevent or punish the selling of art. Many well known artworks which incorporate trademarks/company logos avoid this problem such as Warhol’s Coca Cola or Campbell Soup paintings because of those brands’ understanding that the appropriation of its IP as an image in art enhances the cultural standing (and value) of the brand. This allows a brand to stay in society’s consciousness for longer so much so it becomes part of history. Art is the best form of advertising.
Published 22 March 2022