This note argues for the grant of trademark protection to street artists. The appropriation of street art by retailers is becoming increasingly commonplace, causing consumer confusion in the marketplace. As a result, street artists are bring intellectual property claims, including trademark infringement. There are many challenges a street art faces in bringing a successful trademark infringement claim under § 43(a) of the Lanham Act. These challenges include proving artists have used their mark in commerce and addressing concerns that trademark protection intrudes on other intellectual property laws. This note examines the reasons why courts should broadly interpret use in commerce to validate marks used by street artists. There have been debates regarding whether artists are entitled to trademark protection given the expressive nature of their marks. Courts are reluctant to grant trademark protection to artists. Street art should be exempt from this treatment. Most street artists, as opposed to other artists, use marks in a trademark manner. They use their marks to build reputations and identify the source of their works. As this use is in line with trademark use, street artists should be entitled to trademark protection. Used in commerce means use in commerce that is covered by the Commerce Clause. A broad interpretation of the Commerce Clause would include activity that substantially affects commerce. This note argues that courts should broadly interpret the Commerce Clause to encompass street art, which is mostly a non-commercial activity. This broad interpretation furthers Congress’s intent under trademark law to prevent consumer confusion. In the alternative, this note contemplates treatment of street artists under the eleemosynary standard reiterated in Planetary Motion Inc v Techplosion, Inc and considers the possibility of adding a famous mark exception to the use in commerce requirement.
Crinnion, Danielle, Get Your Own Street Cred: An Argument for Trademark Protection in Street Art (July 15, 2016). Boston College Law Review, forthcoming.