Hi everyone! I am taking some glamour shots and making sample billboard / flyer samples for my portfolio. My question is.. can I use clip art from google images (i.e. shampoo bottle pictures) or do I need to have permission from the company? I will not actually be displaying them anywhere except to customers as a sample. Thanks for the help!

Trademarks are words, symbols, packaging, colors, sounds, scents or a combination of these that allow people 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.

Further, the Trademark Dilution Revision Act (“TDRA&#8221 that became effective October 6, 2006 provides for relief for a trademark owner 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.” Dilution by tarnishment happens when the mark is used in an unsavory or unwholesome manner or it is used in connection with an inferior trademark.

The TRDA, however, revised the “noncommercial use” exception to include “any fair use, including a nominative or descriptive fair use, or facilitation of such fair use.” You still may use a trademark in all forms of news reporting and commentary.

Therefore, if your use of a trademark does not infringe or dilute the mark or fails under a noncommercial fair use, then you may use the mark without concern.

Best,
Carolyn

Aloha Carolyn!

Could you please re-state that ...in regular English? That was about as clear as mud to me... My understanding of English is fairly respectable...leagaleze is a different language...

Mahalo,
SPC II

In sum, when you use a trademark in a photo, would it make someone looking at the photo think that the source of the photo was the trademark owner? If you take a photograph of a Coca Cola product, when someone think that the photo came from The Coca Cola Company? If not, then you haven't infringed the mark.

Also, does the use of the photo associate the Coca Cola trademark with something bad such as the drug, coke? or with an inferior mark, such as Big K Cola? If not, then you have not diluted the mark.

Regardless, you may always use a mark in fair use manners, such as Andy Warhol's Campbell's Soup painting (commentary).

Back to the original question, there may be an issue with copyright using Google's clip art. Make sure the license allows such use or it falls under fair use.

Best,
Carolyn

Thanks Carolyn!

CarolynWright:

Therefore, if your use of a trademark does not infringe or dilute the mark or fails under a noncommercial fair use, then you may use the mark without concern.

Very true. However,

backslash23:
I will not actually be displaying them anywhere except to customers as a sample.

That use may not be noncommercial fair use. The secrecy used doesn't matter. I think the question is "do you intend to profit from the use of the trademark?" Since the topic concerns using the trademark in your portfolio, and I'm fairly confident that you'll be using your portfolio to generate business, then this is commercial use.

Steamscenes is a company that produces, among other products, calendars featuring railroad photographs. The Union Pacific Railroad has given this company legal grief by insisting that they license the logos used on it's locomotives which the company photographs and then sells (in its calendars). Union Pacific has even gone after Steamscenes for using the Union Pacific name in the name of it's product. From a practical standpoint, how would you differentiate calendars with Union Pacific trains from calendars featuring the Burlington Northern Santa Fe railroad, or CSX Transportation, or Norfolk Southern Railway?

Union Pacific has become notorious for it's licensing tactics, forcing a lot of small businesses out of business, so I won't go into it in any greater detail here. There's a Yahoo group that's very active in discussing the specifics of Union Pacific's licensing tactics and the associated legal aspects and impacts, so I suggest going there if you're interested. The lesson learned is there is no easy answer. If it appears to be an easy answer, it's just begging a higher priced attorney to jump in and prove us wrong.

In my limited experience, companies are very cooperative with granting permission to use trademarks. Usually they have to pay to get their trademark out into the public (advertisement). As long as you aren't stating or implying something that isn't the truth ("I am the official Coca Cola product photographer, responsible for every photograph used in Coca Cola's advertising campaigns", you'll probably have no problem getting permission, and in this case, I say it's easier to get permission than forgiveness. The only risk you have in contacting the trademark owners public relations department is hearing the words "no." That's a whole lot better than getting a cease and desist letter from their legal department