Is it illegal to put a photo I took of Nike shoes and put it on a shirt to sell?For this example I'm just going to say it's Nike since we al...

Question

Is it illegal to put a photo I took of Nike shoes and put it on a shirt to sell?

For this example I'm just going to say it's Nike since we all know the swoosh. I know it's illegal to use official Nike photos from their website and stuff, but what if I took the photo myself and put it on a shirt to sell for profit. Also, would it make a difference if the Nike swoosh was showing on the side of the shoe or not? - For example, would it be ok to have a front view (where no logo was visible, but it's still obviously a Nike), but would it not be ok to have a side view where the swoosh is visible?

I'm also wondering, the swoosh on the side of the shoe is part of the design, not the actual copywrited logo right? Therefore couldn't I use a side view photo where the swoosh designed into the shoe is visible as long as the Nike logo itself isn't visible. Or am I wrong on this?

Answer

Based on the described facts in your inquiry, your use of the Nike trademark to market a competing product would constitute an illegal infringement. If your alteration of the Nike image still results in a clearly identifiable use of the Nike trademark, such use violates the trademark.

Whether any action would be taken by the owner of the trademark usually depends on the impact of such action in the marketplace.

Answer

Without seeing the complete artistic expression, it's hard to say exactly what you can and can't do. What is clear: you can't create consumer confusion, you can't hold the shirt out as being a "Nike" shirt, you can't directly and exclusively use Nike media/photos, etc.

In the end, keep in mind that if the mark holder has an issue, you will have an issue - regardless of your opinion or an attorneys opinion as to whether you are infringing. Nike is a big boy and when they see it fit to protect their brand - they do so.

This is NOT LEGAL ADVICE. It is intended for informational purposes only and should not be relied on to make any legal or medical or other major decisions. If you have any specific questions or inquiries regarding any of this information, you should consult with an attorney licensed in your state.

Cary Levinson, Esq.

Levinson & Capuano, LLC

(954) 703-2110

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http://BrowardLegal.com