Product copy question

Hello,

I have created a collection of baby clothing and some of the designs were inspired by artists. Patrick Heron, Damien Hirst etc.

I wanted to know if I could say in the product description: Inspired by Damien Hirst, this baby grow is full of butterflies etc. 

I would be most grateful for any advice.

Thank you

51 viewsintellectual property law

Alasdair Taylor's Answer

As with many questions of intellectual property law, answering this one is a little tricky. There are issues here touching upon both trade mark law and artists’ rights.

In some cases, clearly, there could be legal risks. For example, DAMIEN HIRST is a registered trade mark in the UK and wider EU (EU002024644). Prima facie, use of the a registered trade mark in the course of trade in relation to the goods or services for which it is registered is an infringement of the mark. However, there are some defences in the trade marks legislation which may be relevant.  Most notably, Section 11(2) of the Trade Marks Act 1994 says that:

“A registered trade mark is not infringed by … the use of indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services, … provided the use is in accordance with honest practices in industrial or commercial matters.”

It is not clear to me if this Section would apply to the example you have given. It has been many years since I regularly advised on trade mark issues, and you will likely be able to get a better answer from a trade mark attorney or solicitor specialising in trade marks.

Depending upon how you present a name, issues could also arise under the tort of passing off.

Another argument that an artist might make in relation to your suggested text is that it amounts to a false attribution, because it is not clear that you are saying “This work was inspired by X” as opposed to “Be inspired by X, and here is an example of his/her work”.  Section 84 of the Copyright, Designs and Patents Act 1998 deals with false attribution.  See:

https://seqlegal.com/blog/false-attribution-moral-right

On the other hand, I can certainly imagine instances where the text is unlikely to cause problems: e.g. where the artist is long dead, where there is no estate that actively administers the artist’s work, where there are no relevant registered trade marks, and where the artists’ name is not currently used in the course of trade.

So, as so often, the risks depend upon the specifics.

NB the comments here are from the perspective of English law.

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