Still from http://www.polandspringbornbetter.com
Is it possible to confuse a Poland Spring bottle of water with a $300.00 Poland Spring bottle of water stuffed with a Chinese knockoff wristband? Nestlé is hedging its bets on a current trademark infringement claim against artist Anthony Antonellis, claiming that average consumers can’t tell the difference between their bottled water and his, largely because his work belongs on a website URL formerly owned by the conglomerate. Additionally the URL contains phrases that have been trademarked by Poland Spring.
On January 8, 2015, artist Anthony Antonellis received a cease-and-desist letter from Nestlé Waters North America requesting that he refrain from renewing his URL www.polandspringbornbetter.com, which he purchased after Nestlé failed to renew the domain. Nestlé specifically warns that his site “improperly uses our trademarks and is likely to lead consumers to believe that the site is somehow affiliated with or endorsed by Nestlé.”
Trademark law intends to protect consumers from “likelihood of confusion”; in this case, it would protect people who might think they’re purchasing spring water when they’re actually purchasing art.
Antonellis told Art F City that “not one person” has mistakenly purchased his $300.00 “Poland Spring Power Balance” sculptures. “The site and work,” he said, “were meant to be tongue-in-cheek.” In addition, the site was originally produced for Poland Spring Power Balance & Unity Unisex Pheromone Fragrance, a two-person exhibition with Jen Chan at the online gallery Art Object Culture.
Looking at the site, it’s difficult to imagine anyone who would think they’d be buying a regular bottle of water. There’s a few GIFs showing Antonellis—represented by a disembodied hand—stuffing Chinese knockoff Power Balance bracelets into Poland Spring water bottles. The background fades from blue hues to green; the foreground shows images of Poland Spring water bottles covered in holographic bracelets. A “Buy Now” button underneath the first image connects to PayPal. Once on the PayPal page, you’re shown an order summary for $300.00 to purchase a “Poland Spring bottled water infused with Power Balance bracelet” via the seller Metroline Design, Antonellis’ design company.
In short, the site doesn’t have much in common with the water retailer, or the water retailer’s own site.
These artistic elements might not matter in the eyes of federal law. In a phone interview, artist and art lawyer Sergio Muñoz Sarmiento further noted his concern about Antonellis’ use of the Poland Spring logo. The likelihood of confusion, Sarmiento explained, can be assessed with just one question: “Does it create confusion with the average consumer?”
“Under federal law,” he explained, “proof of actual confusion is not essential in determining trademark infringement. However, such evidence may be compelling in an infringement case.” (While that element of consumer confusion applies to trademark infringement, which applies to brands and logos, it does not apply to copyright, which applies to authorship, a main element of the Cariou v. Prince case.)
Donn Zaretsky of The Art Law Blog and Partner at John Silberman Associates, explained how “likelihood of confusion” can be applied to Antonellis’ site: “The issue in cases like this is what’s the likelihood of confusion, and in this case – given the lack of informational context at the site – you can imagine people might assume this is an authorized Poland Springs project.” His advice for Antonellis: “ Some prominent disclaimers might be helpful.” Just how prominent those disclaimers would need to be, and whether they would compromise the artwork’s integrity, was not discussed.
Though the cut-and-dry legal advice leans towards Antonellis taking down his “Buy Now” button because it has the potential to create consumer confusion, Sarmiento added that although Nestlé has requested that Antonellis refrain from renewing the domain, he is not required to do so under any cybersquatting laws.
Nestlé has requested that Antonellis comply by January 18, 2015. Antonellis is currently looking for a pro bono arts lawyer that specializes in copyright law and fair use.
{ 8 comments }
In an era when so many brands use artists to make “creative riffs” on their products, those companies also want to be careful that this or that particular creative riff is not “their” creative riff. This bottle and Antonellis’s slick web page are right on the line. It doesn’t help that he has a “design company” handling the sales. Is this art or design? Is he trading on Poland Spring in some subtle fashion? If you push the envelope of what’s permissible in a confusing web environment, you shouldn’t be surprised that the envelope pushes back. (It looks like the “buy” button has already been removed.)
Speaking of confusion, based on AFC’s recent treatment of a certain artist who fell out of favor with you, this plea for justice for poor misunderstood Antonellis could have flipped the other way, where you wrote a post questioning his ethics in using brand confusion for “further[ing] his own successful career capital.”
Do you think it was unethical for Antonellis to create the website? My own feeling was that Metroline Design added a level of confusion that could create problems, but I don’t think there was an issue of ethics here. It’s an art prank.
Related to this: Is etoy is a relevant reference here? There are no wars or plummeting stocks but the base complaint was trademark infringement.
Do you think it was unethical for Antonellis to create such boring art? What if he had filled those Poland Springs bottles with *actual* bullshit?
What art do you think deserves more exposure than it is getting?
I’m glad you brought up the advertising aspect: one of the lawyers I spoke with mentioned that creative advertising has nearly erased the line between art and other products, at least in legal terms. 1) Quizno’s, Starbucks, everyone makes quirky, weird campaigns now (to which you alluded).
That said, if Antonellis were using brand confusion to further his own career capital AND if it had anything to do with his legal action, I would have noted it in the article.
Hi Paddy!
This is and was an artwork and not a design product. Metroline, as listed on the PayPal checkout header, is a DBA that I use for freelance work. A bank account can only be tied to a single PayPal account; consequently I do not have separate PayPal accounts differentiating between sales using my name and my DBA.
A little background regarding the work: Poland Spring Power Balance was a work created for the now defunct online gallery Art Object Culture. The gallery’s curatorial mission was to invite “two artists a month to create new art objects from items preexisting in various online stores”.
My goal was to parody energy drinks by combining bottled water with holographic energy bracelets from Alibaba — a criticism of the purported health benefits of the natural mineral element in the water and the healing properties of hologram stickers.
It was hosted on the former Poland Spring domain which had they had let expire a few months prior, and exhibited in an iframe on Art Object Culture’s website next to Jennifer Chan’s work (the other artist in the online exhibition).
Playing devil’s advocate, yes, I could take Antonelli’s Poland Spring Absolut-style artist promo page, question his ethics and morals, and pronounce it the most offensive work of 2015. You could say it was a prank and I would argue that he provoked you into exactly this defense of the embattled artist threatened by a giant corporation, that he was playing you to build his design company’s brand. That might not be fair, but that’s why you have to be careful about declaring some artists bold and others corrupt when they are all working in that slippery grey area. (Arguably Ryder was more courageous by taking on the taboos of “sexual exploitation” and yet, you destroyed him.)
As for etoy, my memory is that their project had much more ethical heft because they had registered etoy first, and trademark is based almost entirely on priority in time. The online toy company came along later and tried to displace etoy’s established mark based on brute force litigation tactics.
Three things have happened in the past few hours: the “buy” button is back, it now has a disclaimer that the Poland Spring site is #fineart and not Nestle-affiliated, and the comment above explaining that this is an artwork was anonymized to “guest.” This might be enough to slow the legal freight train!
Regarding the merits of the art work, we could probably do with less of this Jogging type project that uses brands to “critique” other brands. The artist has a pat thesis statement, all ready for that grant proposal: “To parody energy drinks by combining bottled water with holographic energy bracelets from Alibaba — a criticism of the purported health benefits of the natural mineral element in the water and the healing properties of hologram stickers.” That point is relatively minor, and while it might impress the grant-givers when spelled out like that, it was lost on Poland Spring’s legal dept., as well as Corinna Kirsch, who didn’t mention that interpretation.
The Art Object Culture gallery also had a slight “curatorial mission” — to invite “two artists a month to create new art objects from items preexisting in various online stores.” This could have been hatched as a cross-branding scheme by a NY ad agency — maybe it was. The only difference being that the agency would be savvy enough to get the necessary rights before going live.
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