Bare, Heaving Chest
Ahem. Now that I have your attention....
Tattoos have gone mainstream, shedding much of their tough or subversive image -- but "preppy tattoo" still seems like an oxymoron. Until you see the folllowing, that is:
Apparently Peter McBride's Polo tattoo (which makes me think somewhat disturbingly of what would happen if one were wearing a Polo during a nuclear attack and the material were to fuse with the underlying skin) is part of a trend toward corporate logos as body art. Sure, a Harley-Davidson tattoo is practically a cliche, but few people have enough brand loyalty to inscribe our favorite logos on our skin. Or so I thought.
But is my Georgetown Law student David Barzelay, who kindly sent the link and has a bright future in intellectual property law, correct when he says, "This guy's chest is a big, sad, shaved, and heaving violation of the Lanham Act"? Or is this fair use of the trademark in the form of artistic expression? And does it make a difference whether we're considering the actions of the tattoo artist (selling the image and its application) or the action of the tattooee (presumably just displaying the mark in an expressive fashion -- unless he's in another line of, er, sales)? (Note to the Ralph Lauren empire: Discreetly tattooed, clean-cut gigolos are probably NOT a good fit with overall brand image.) In order to determine the likelihood of consumer confusion here, we may need to ask a few questions. Unless they fall into the category of "too much information."
Either way, this is an interesting example of a broader cultural phenomenon. Well-known trademarks are part of our modern language, and their significance stems not only from the efforts of the trademark owner but also from the meanings developed or imparted by consumers. In a branded world, trademarks are source indicators for goods or services – and so much more.
P.S. For an earlier post on tattoos – this one on their copyrightability – and an interesting law review reference, click here.