Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> ... Campbells Soup and Brillo, so far as I know, never sued Andy
> Warhol. Maybe they thought the benefits of the publicity they were
> getting outweighed any infringement issues.
Moreover, they probably knew they wouldn't win. Remember that what Warhol was doing was copying trademarks (and trade dress), NOT copying copyrighted works. While the test of copyright infringement is substantial similarity, the test of trademark infringement is likelihood of confusion. Since no reasonable consumer would be likely to think that Warhol's painting came from the Campbell's company, or that Warhol was affiliated with or sponsored by Campbell's, the soup company would have lost a trademark infringement action at the very outset. They couldn't even have brought a dilution action, because Warhol's work was not using their trademark "in commerce" AS A trademark; he was using it as a subject for art. That's not a violation of trademark rights in anybody's book.
Bob Cumbow
<cumbr[_at_]perkinscoie.com>
Received on Wed Jul 29 1998 - 16:40:30 GMT
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