First Amendment’s Role in Trademark Infringement Analysis

The 11th Circuit joined several other Circuits in finding that artistic depictions of trademarks may be protected under the First Amendment.  The facts are pretty similar to the “Tiger Woods painting collage” case from a few years ago.  There, the 6th Circuit held that artistic paintings of Tiger Woods did not mislead the public as to the source of the paintings, and there was no false endorsement claim.

In yesterday’s 11th Circuit opinion, the Court dealt, in part, with the University of Alabama claiming that paintings of University of Alabama football scenes violated the University’s trademark rights.

Agreeing with the analysis from the Tiger Woods case, the 11th Circuit found that the First Amendment protects this type of artistic work despite the works being for commercial gain.  The artist is not intentionally appropriating the trademark for gain.  The trademark use is incidental, and consumers are not being misled as to the source of the painting.

Excellent ruling.

Read it HERE.  (University of Ala. Bd of Trustees v. New Life, Inc)

(It has been a good month for the First Amendment.  Last week, the 7th Circuit held that a South Park parody of the “What What (In the Butt)” viral video was fair use.  Read about that, HERE.)

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