Употреба туђе жигом заштићене ознаке у контексту уметничког изражавања - осврт на предмет Rogers V. Grimaldi
The Use of Third-Party Trademarks in the Context of Artistic Expression - Review of the Rogers V. Grimaldi Case

Author(s): Jelena Ćeranić Perišić
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Trademark; Artistic expression; Trademark infringement; Virtual reality; The Metaverse;
Summary/Abstract: The use of third-party trademarks in the context of artistic expression has been attracting the attention of the scientific and professional public for a long time. This issue is especially gaining importance with the accelerated development of digital technology and the use of trademarks in Virtual Reality, including the Metaverse. The use of a trademark by a third party does not always constitute trademark infringement. If trademark is used for commentary or criticism, such use is not considered infringement and the First Amendment right to free expression. The Second Circuit held in Rogers that "in general , the Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression". To balance these two considerations, the Second Circuit articulated the widely used two-factor Rogers test, which requires that the trademark use have "no artistic relevance to the underlying work" or "does not explicitly mislead" as to the source of the work for a finding of infringement. Due to the development of digital technology, a new form of social and economic exchange in virtual reality, including Metaverse, has been created. The first disputes regarding the trademark in virtual reality and the Metaverse relate to the use of third-party trademarks in the context of artistic expression. In this respect, a significant case from US judicial practice Hermes Int'l v. Rothschild. The decision provides helpful guidance on how courts will treat the issue of the use of third-party trademarks in the context of artistic expression in the future.

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