Photo Attorney

May 13, 2009

Trademarks Removed In Photos of Flight 1549

Photographers often take pictures that include trademarks or trademarked items in them. Trademarks are words, symbols, packaging, colors, sounds, scents or a combination of these that allow customers to identify the source of goods or services. Infringing a trademark occurs when the use of the mark causes likelihood of confusion as to the source of the product or service.

Trademark law also provides protection for trademarks from dilution by blurring and dilution by tarnishment. Blurring occurs where the connection in the consumers' minds between the trademark owner's mark and the trademark owner's product or service is weakened. Tarnishment is when the use of the mark is unsavory or unwholesome or when the mark is used in connection with inferior products.

However, trademark law allows for noncommercial and fair uses, such as nominative or descriptive uses, of trademarks. You may also use trademarks in all forms of news reporting and news commentary.

So why would US Airways require Stephen Mallon to remove the US Airways logo before posting photos of the airplane from Flight 1549 that had an emergency water landing on his blog or on Wired.com? PDN Pulse has the before and after shots.

Nothing about the uses of Mallon's photos would infringe or dilute US Airways' trademark. At minimum, these are nominative and/or noncommercial uses and likely would be considered news reporting. Instead, this is another ridiculous control of photographers that is not based on the law. Check my September 21, 2008 and March 23, 2009 blogs for other examples of this struggle.