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A page from an Andy Warhol book depicting Campbell’s soup cans might seem worlds apart from trademark law, yet it perfectly captures the crossroads of art, commerce, and branding. Warhol took an everyday product label – Campbell’s Soup – and transformed it into high art, blurring the lines between commercial imagery and creative expression. For businesses in publishing, design, or any creative field, this interplay is a daily reality. On one hand, your work might incorporate brands or cultural icons; on the other, your own brand identity needs protection. Trademarks act as both a shield and a compass in these situations, assisting creative businesses in avoiding legal pitfalls when referencing others’ marks and securing their own brand elements as they create original content. Let us look at how UK, EU, and US trademark principles apply to the worlds of books, art, and design-driven businesses.
A common question in publishing is whether or not a book or publication title can be trademarked. Single titles are not typically trademarkable. However, there are brandable elements in publishing: the name of a book series, the name of a magazine or journal, a publishing house name or logo, or even the name of a recurring character in a series can all serve as trademarks. For example, “For Dummies” (the series of educational books with yellow covers) is a registered trademark that refers to a complete line of products. Once it is clear that a series consists of more than one work, an independent publisher or author in the United Kingdom or the United States may trademark the name. The EU is similar: you must demonstrate that the name is used as a brand (rather than a title). If you’re a SME releasing a trilogy of art books under a distinct series name, registering that name can prevent others from publishing confusingly similar titles in the same genre. Similarly, if you start a design magazine or a content website, your masthead (the publication name) should be protected in the same way that other brands are. It prevents copycats from launching a competitor with a similar name, and it allows you to confidently expand the brand (think events, merchandise, or spin-off publications) without fear of name conflicts.
Creative businesses frequently have an eye for aesthetics, which can result in unique branding elements. A publishing imprint may have a distinct colophon symbol; a design firm may use a clever monogram as its logo; and an artist may have a signature motif or a stylised way of writing their name. These visual identifiers are ideal for trademark protection. Any distinctive device (logo, stylised word, even a specific colour scheme or motion graphic) that indicates your goods or services can be registered as a trademark. Warhol’s Campbell’s soup artwork highlights this inadvertently, as the red and white soup can label is Campbell’s trade dress. While Warhol used it in art, if a competing soup company attempted to use similar packaging, Campbell’s trademarks would be used to prevent it. Consider what visual cues help your SME recognise your products or services. Have you used a specific font and icon on all of your book covers? Do your art prints bear a specific embossed seal? If it identifies you as the source, it’s your signature style. Registering these allows you to prevent others from using a confusingly similar visual presentation. This is especially important in design-heavy industries, where clients may associate a specific style or logo with your quality and taste, which you do not want to confuse or dilute.
Warhol’s use of the Campbell’s soup logo was arguably an artistic commentary rather than a competing product. (Notably, Campbell’s Soup Company never sued Warhol; in fact, they reportedly found the homage flattering, but such goodwill is not guaranteed by every brand owner.) But what if a designer or artist wishes to reference or parody a brand in their work? In the United States, a doctrine known as nominative fair use allows for the use of a trademark to identify the actual product or brand (for example, a memoir mentioning “Facebook” by name is generally acceptable as long as it is only referring to the company). There is also the concept of expressive use, which occurs when a work of art, film, or novel employs a trademark for realism or commentary purposes. Courts strive to strike a balance between trademark rights and free expression, frequently using tests to determine whether the use is artistically relevant and does not explicitly mislead consumers about endorsement. In the UK/EU, there is no explicit “parody defence” in trademark law, but there are allowances for descriptive use and comparative advertising, and one can always argue fundamental free expression if a trademark owner challenges an artistic use. The practical tip for SMEs is to be mindful: using someone else’s brand or logo in your creative project may be acceptable if it is clearly for commentary, parody, or necessary description – but proceed with caution if there is any commercial angle. Selling prints featuring the Nike swoosh or the Coca-Cola logo without permission is likely infringement, not fair artistic use, because you are monetising someone else’s mark. When in doubt, seek permission or take a different approach (such as altering the mark just enough to evoke the idea without copying it outright) – though even that has risks if consumers still perceive it as the original mark.
Trademarks are one component of the intellectual property puzzle for creative businesses. You’re also likely to deal with copyrights (for the content of books, artwork, and designs), as well as patents or registered designs (if you’ve invented a new product format or ornamental design). It’s critical to understand how these things work. A trademark will not prevent someone from painting in a style similar to yours; that is a matter of copyright or competition; however, it will prevent them from branding their business with your name or logo. In contrast, you may have copyright in an artwork but choose to trademark its title or a key image for merchandising purposes. Take J.K. Rowling’s Harry Potter series: the text is copyrighted, but the brand “Harry Potter” is trademarked for a wide range of merchandise and media, ensuring that only authorised parties can use the name on goods. As a SME, even if you’re not creating global phenomena, think in these terms: identify the elements of your creations that have branding value (names, characters, logos) and protect them with trademarks, while also leveraging copyright for the works’ substance. This dual strategy maximises both your protection and your opportunities. (In the EU and UK, unregistered design rights for the appearance of products are also available, which can be useful for fashion or product design, but they do not grant a monopoly on names or symbols, which is why trademarks are still necessary for the brand side of things.)
Monetisation and growth are two major commercial challenges for creative SMEs. You could begin with a single artistic project or a niche publication, but success can lead to expansion: special editions, merchandise, collaborations, and even franchising a concept to new markets. Trademarks are the foundation for these expansions. If you own a small art gallery that publishes a book series, obtaining a trademark on the series name may allow you to later licence the name to an overseas publisher. If you create a successful character or graphic, a trademark allows you to collaborate with manufacturers on products featuring that design. Without a trademark, you can still make those deals, but enforcing exclusivity is difficult. Furthermore, trademarks increase the value of your company because they are intangible assets that investors or buyers will take into account if you ever seek funding or exit. Many creative businesses have been acquired not just for their content, but also for their brand portfolio. Even if you intend to retain control, a strong brand legacy (protected by trademarks) ensures that your company can continue to generate revenue from your creative achievements in the long run, just as the Andy Warhol Foundation carefully licences Warhol’s imagery to trusted partners. To summarise, by treating your brand elements with the same care as your artwork, you lay the groundwork for long-term success.
If you require any additional information or assistance, please contact tmr@trademarkroom.com.
