When a tattoo affects a company’s image
Even though tattoos have been historically associated with slavery, they are now a part of fashion. For many, they symbolize a past event that emotionally connects. In both cases, tattoos must be of enough importance for one to carry with at all times. The relationship between trademark laws and permanent body art seems like a distant one, until things start crawling towards rights violation.
To start with, imagine your good old biker friend with the popular Harley Davidson logo tattooed on his arm, committing a grievous crime, for which he has to spend all his life in jail. If that seems less surprising, think of your successful entrepreneur friend, who has climbed up the corporate ladder, representing say, for instance, Unilever.
Given that tattooing employer logos has become a culture, your friend’s wrist tattooed with the logo of Unilever would perhaps please the company, until an episode where he gets too drunk, and perhaps does something stupid at a game of cricket in the stadium, let alone terrorizing a population in any manner.
Well, with every view of the YouTube video that recorded your friend’s activities, and irrespective of the fact that people may well be informed that he no longer is associated with Unilever, the logo would keep showing wherever he presents himself in the future, diminishing the brand or the image of the company.
Can tattoos dilute trademarks?
Trademark dilution can be said to occur at instances when any company or individual uses a mark that is either the same, or significantly similar, to a mark that has already been in existence, activating the minds of the consumers to somehow relate between the marks.
Hence, the strength of the original mark wears out. However, unlike trademark infringement, where customers are confused as to the source of a particular product when they purchase something with the expectation of receiving the exact quality from a brand of their reliance, dilution can be explained through the following example.
In a case when one would see Kodak plastic tiffin boxes in a shop for instance, irrespective of the fact that most consumers are unlikely to think that the famous film company now has gotten involved with the plastic manufacturing business, and although customers are well aware that the source of these tiffin boxes is different, it would still lessen the image of Kodak being solely associated with film.
Dilution by “tarnishment” mentions an unsanctioned usage of a particular mark that exposes a mark in an objectionable manner, likely to put forward uncomplimentary thoughts regarding a product. Distributors of a well-known counter-culture poster were sued by Coca-Cola when a poster wrote “Enjoy Cocaine” in the same font as Coca-Cola, making it look like a Coke ad. While Bangladesh's Trademark Act, 2009 is capable enough to protect tarnished marks, dilution by “blurring” remains a problem.
Professor Frank I Schechter, the introducer of dilution law, defines the harm done by “blurring” as the “gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name.” The consumer’s strong association of a particular mark is blurred since the mark’s association is now being shared between two goods.
Whenever the unique identity of a particular mark is weakened over its use on goods that are not similar, dilution by blurring occurs. Meaning, the usage of a mark on a competing product dilutes that mark as much as the usage of such a mark on a non-competing product.The non-commercial exclusion
Whereas on one hand, it seems as though a law to tackle trademark dilution by blurring would solve the tattoo problem, the law in the US (where literature on the topic has extensively developed over the years) excludes from its scope of dilution the use of marks for “non-commercial” purposes.
Hence, what is the likelihood that a person would use permanent body art to commercially gain all the time? But then, failing to take action is certainly not helping the mark (and the brand associated) from getting tarnished either.
You would perhaps get an even bigger picture if your Unilever friend had created nuisance after becoming a celebrity (maybe he later took up acting as a career) -- there would be much larger scale of damage to Unilever.
Now, even if we do consider enacting a law that would not include non-commercial exclusion, it is natural that upon filing a suit from a company’s end, an expectation may be of the court to order the removal of the tattoo from the skin of a particular human being.
The right of body
So the question boils down to whether Unilever would be able to convince the court for a surgical procedure on your friend’s body. Would that not violate one’s bodily integrity, mentioned as a human right in accordance to both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights?
Saquib Rahman is a Dhaka Court Advocate and Lecturer at the Department of Law, North South University.