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.