Philip Morris does not want its cigarette cartons used as art. The mega-corporation has today accused artist Brad Troemel of trademark infringement for using Marlboro products in his Etsy store. Two works in particular seem to infringe on the Marlboro name, “dean & deluca low calorie snack inside Marlboro box w/ Cerebral Palsy Tissue/Organ Kidney Cancer Green Ribbon Glittery Sticker (Ethical) ½” and “ORGANIC STRAWBERRY wafers in MARLBORO box”. As of this evening, the strawberry wafer box had been removed from Etsy.
This afternoon, Troemel posted a section of the company’s cease and desist letter on his Facebook page:
The infringing Products misappropriate PM USA’s MARLBORO Marks©. As shown in Exhibit A, the Infringing Products feature the exact MARLBORO© word mark and Trade Dress. Your use of the MARLBORO© Marks in this manner demonstrates that intended to replicate PM USA’s Marks. Your conduct is thus calculated to mislead consumers into believing that PM USA endorses, sponsors, licences or otherwise is affiliated with you and the Infringing Products. Thus, your advertisement, offering for sale, sale, and/or distribution of the Infringing Products constitutes trademark and trade dress infringement, unfair competition, and dilution under the Lanham Act, 15 U.S.C. 1051 et seq., and corresponding state law, and may subject you to liability for injunctive relief and monetary damages. Further, your conduct harms the MARLBORO© brand by targeting the Infringing Products to “Teen Girls,” which falsely implies that PM USA markets its products to youth. See Exhibit A.
When asked for a comment over Facebook, Troemel told us: “Haha no thanks”.
We’re confused about why Philip Morris thinks someone would confuse Marlboro cigarettes with a used carton full of snacks, nevermind why teenage girls would want to chew on some of that. Still, the suit does have precedence with the most visible trademark case brought against artists working online: in September 1999, the online toy distributor eToys (www.etoys.com) sued the artist group etoy (www.etoy.com) for trademark infringement. In that case though, there was some actual confusion between the two sites. Eventually, eToys dropped their suit against the artists, but not before etoy’s supporters gave the company (and its stock price) a battering resulting in bankruptcy. Both websites are still up and running.
Update: After this post went live, Brad Troemel told us the following in an email:
Etsy removed my ORGANIC STRAWBERRY wafers in MARLBORO box. This is my first time being contacted by a company which was exciting because I’ve been looking for a sponsor for my Etsy store and Jogging in general. I look forward to working with many companies in the future for prosperity and mutually beneficial outcomes of positivity. Youth markets.