A friend alerted me to this story: Timbuk2 announced plans this summer to make custom messenger bags by laminating recycled advertising material such as posters, billboards, and shopping bags. Timbuk2 advertised images of these Lamitron bags bearing the Target logo. Target responded with a cease-and-desist letter expressing “concern that [Timbuk2’s] use of [Target’s] famous Bullseye Design mark could give the impression that these bags originate from, or are somehow sponsored by, or are otherwise affiliated with Target . . . we request that you cease use of TBI’s Bullseye Design mark on your Lamitron bags.”
This dispute is the trademark law equivalent of a remix or mash-up of a copyrighted song and exists on the cusp between traditional trademark law and 21st century marketing. The lawyer in me understands why Target sent the cease-and-desist letter. Trademark law places the onus of trademark protection on the mark’s owner, who must guard against unauthorized use of the mark, whether infringing (likely to cause confusion about the source of a product) or dilutive (weakening the identity of the mark in ways that are not infringing). To a lawyer this is a classic slippery-slope problem. It Target lets Timbuk2’s use go unchallenged then the next unauthorized use becomes harder to challenge and, at some point, the Bullseye Design loses its association with Target and becomes another piece of worthless iconic flotsam on the sea of advertising images.
Idea City, a marketing and advertising blog, argues the other side: “Shame on you, Target. This is a new era . . . Timbuk2 may be another “company” rather than a “customer”, but what they offer you is a way to keep the Target brand relevant, fresh, and at the cutting edge of fashion and design. Why in the world would you ask Timbuk2 to remove your logo from their bags?” The lawyer’s retort is “because (1) Target, not you, gets to decide how to keep its brand relevant and fresh, (2) unauthorized use of the Bullseye Design will weaken its relevance and freshness, a result that does not harm you but harms Target deeply, and (3) allowing your use would be the first big push down the slippery slope.”
Trademark law shapes the environment in which the parties confront this issue, but its concerns are not the only ones. Creativity builds on the creations of others. Danger Mouse remixes The Beatles’ White Album and Jay-Z’s Black Album to create the Gray Album. Tom Stoppard takes two minor characters from Hamlet to create Rosencranz and Guildenstern Are Dead. Alice Randall reimagines Margaret Mitchell’s Gone With the Wind through the eyes of a slave in The Wind Done Gone. Timbuk2 takes found advertising images and places them in a different context by incorporating them into its Lamitron bags. Is Timbuk2 picking stuff at random from the cultural stream and giving it new meaning, or trading on the value of Target’s property? We know what the lawyers say and what the creative types say. Is there satisfactory middle ground?