Photo Attorney

Nov 18, 2006

New Law Affects Photos of Trademarks

Photographers often take photos that include trademarks. As reported in my February 9, 2006, blog, proposed amendments to trademark law raised concerns as to whether it would be more difficult for photographers to include trademarks in their photos. The good news is that the final language of the new law is more favorable than we feared.

The Trademark Dilution Revision Act ("TDRA") became effective October 6, 2006. The Act establishes a "likelihood of dilution" standard rather than "actual dilution" when a challenged and allegedly diluting mark has already been put into use. The new law also provides for relief from both dilution by blurring and dilution by tarnishment. Dilution by blurring occurs when "an association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark." A famous mark now means it is nationally famous and is "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner."

Of specific concern to photographers were suggested revisions to the "fair use exceptions" for trademarks. The proposal eliminated "noncommercial use of a mark" and changed the fair use definition. Fortunately, the final TRDA maintained the "noncommercial use" exception. The fair use exception has been revised to include "any fair use, including a nominative or descriptive fair use, or facilitation of such fair use." This language appears to be more inclusive than that originally proposed.

While the final affect of the TDRA won't be known until the courts interpret it, photographers can breathe a bit easier when shooting photos that include trademarks.

Take my advice; get professional help.

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