The relationship between brands and artistic expression is a very unclear area of law for Canadians. Most of the relevant jurisdictions that deal with this issue are US District Court decisions that are convincing (but not binding) for our purposes. However, leaving aside the fact that the case-law on the first amendment does not exactly coincide with Canada's freedom of expression, the case-law on the first change can not be exactly the same. Criterion (as set out in 2 (b) of the Charter), there are some recent US decisions that may give us some insight into the arguments of a Canadian court could Consider similar circumstances in the future.
Can brands be reproduced without permission in artistic works?
Recently in a remarkable lawsuit The Eleventh Court of Appeals has designated the incorporation of the marks of a university into the marks of an artist painting . prints , and calendar as freedom of speech, whereby first amendment protection is achieved.
The facts in this case were quite simple – the artist had painted famous football scenes for many years, in which the university was involved. His depictions contained a number of university hallmarks, including uniforms, helmets, jerseys, and the famous team colors.
For almost a decade, the artist and the university have entered into a series of licensing agreements to produce market-specific articles that depict these famous football scenes. During this time, the artist continued to produce paintings and prints for which he argued that they were not subject to any license agreement. A few years later, the university informed the artist that it needed to license all its products in Alabama, as they had university stamps. He objected on the grounds that he did not require permission to present historical events as long as his use of the trade marks was limited to his original works.
In the end, the Circuit Court of Appeal ruled in favor of the artist in relation to the prints . painting , and calendar , Despite the fact that he has not appealed against the characterization of the Federal Court Cups and other worldly products as more "commercial speech" The appeals court decided to reverse this decision due to some unresolved issues (**). * The original licensing agreements contained ambiguous provisions stating why the court rejected the University's argument that these agreements prohibited the use of the trade marks by the artist in relation to both categories of goods.
In court ratio decidendi He emphasized that deciding on whether an artistically expressive work violated a mark requires an appropriate measurement of the mark public interest in freedom of expression against the public interest in avoiding consumer confusion – Against this background, the court has argued that the artistic use of a trademark only violates the prohibition Latham Act (* the American equivalent of the trademark Act ) if (I) The use of the trademark has no artistic relevance to the underlying work or if it's artistically relevant, (Ii) The work should be misleading explicitly in terms of the source of its content (Give us a two-part test that a Canadian court might find convincing in future cases.)
Given that this argument is only convincing to Canadian courts, it is currently an academic question whether an argument in Section 2 (b) could be cited in support of an artist using unlicensed trademarks in Canada. Interestingly, the defense was accepted and rejected in other brand-related situations.