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If you tattoo a trademark on your body - Skinvertising- can you be sued?
- 01 August, 2024
- Nyall Engfield
If you tattoo a trademark on your body, skinvertising, can a brand sue you?
It appears that in most cases, an individual getting a tattoo of a trademarked logo would not be considered trademark infringement. The key points are:
- Trademark infringement requires the infringing use to be "in the course of trade" or for commercial purposes. Simply having a logo tattooed on your body for personal reasons would not qualify as use in commerce and therefore would not infringe the trademark.
- There are some exceptions where tattooing a logo could potentially be infringing, such as if the tattoo was part of a paid promotion or advertising campaign for a brand (known as "skinvertising").
- However, for the average person getting a tattoo of a brand they like, it is very unlikely the brand owner would have a viable trademark infringement claim against them. The brand would have to show the tattoo was being used commercially in a way that creates consumer confusion.
- From a practical standpoint, even if there was a technical case for infringement, most brand owners are unlikely to go after individuals with logo tattoos unless the person is famous and the tattoo is getting significant publicity that reflects poorly on the brand.
- The tattoo artist inking the logo may have more exposure, since they are using the mark in the course of their commercial tattoo business. But customer tattoos of popular logos and characters are very common, and tattoo artist lawsuits are still quite rare.
So in summary, while tattooing logos does carry some small legal risk, especially for the tattoo artist, an individual is unlikely to face trademark infringement liability just for having a brand logo tattoo, as long as they are not using it commercially to promote competing products or services. The tattoo would be seen as a personal expression, not a use in commerce. But if the tattoo was part of a paid sponsorship deal or advertising campaign, the risk would be higher.
Skinvertising
There have been several notable cases of "skinvertising" or tattoo advertising over the years:
- In the early 2000s, a man named Jim Nelson was paid $7,000 to tattoo a web hosting company's logo on the back of his head. Ironically, the company went out of business shortly after, but Nelson was still promoting them for years with the permanent tattoo.
- In 2005, a man named Brent Moffat accepted $10,000 to tattoo the Golden Palace casino logo on his forehead. He later expressed regret and had the tattoo partially removed, finding it negatively impacted his love life and employment prospects.
- Also in the mid-2000s, a woman named Karolyne Williams had GoldenPalace.com tattooed on her forehead for about $10,000, saying she needed the money to support her son and send him to private school.
- In 2013, a New York City coffee shop owner got "I ♥ NY" tattooed on his hand, then used an illustration of the tattooed hand as his shop's logo. The NY State Department of Economic Development sent him a cease-and-desist letter for trademark infringement.
- In 2015, Coca-Cola launched a tattoo marketing campaign as part of Hispanic Heritage Month, creating Coke cans with temporary tattoos of various family names that consumers could apply to their skin.
- Toyota once launched a campaign paying 40 people to wear temporary forehead tattoos featuring car names and prices, aimed at the 30-40 age demographic.
While the "skinvertising" trend peaked in the early-mid 2000s, often involving individuals accepting money to tattoo brand logos on prominent parts of their bodies, there have been a handful of more recent examples of brands dabbling in tattoo-based experiential marketing as well. The individuals getting the tattoos have typically been motivated by financial need. However, many later regretted their decision as the permanent tattoos became a liability. From the brand side, while it generated publicity, the ethics of the practice have been questioned as potentially exploitative
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