Illegal Art? The Artists' Group Superflex Co-Opts Global Trademarks

By ANUPAM CHANDER
Thursday, May. 13, 2004

An exhibition closing this Sunday in Los Angeles at the Redcat Gallery in the Disney/CalArts Theater featured the work of a trio of artists from Denmark, organized together under the moniker "Superflex". The members of Superflex hope to use their art to remake international commerce--at least, the bit of it involving a highly caffeinated drink.

The exhibition posed an interesting political question: Can artists help local communities challenge multinational corporations?

In addition, the exhibition posed an interesting legal question: Does Superflex's work violate international trademark law?

Guarana's Progress: A Berry Goes Global

The drink at issue packs a wallop. It contains guaraná, a berry grown in the Amazon that indigenous peoples discovered held a high concentration of caffeine. In Brazil, Guaraná has long been used to make a popular drink--one that is handy to keep carnival revelers awake through the night.

In 2000, the two main Brazilian companies with guaraná drinks--Antarctica and Brahma (after the Hindu deity)--merged to create AmBev. In turn, AmBev announced this spring that it will combine with Dutch beverage giant Interbrew to form an even bigger multinational corporation.

Recently, other multinational companies too have seen the global potential in this potent berry. PepsiCo introduced its own guaraná soft drink in the United States in the mid-1990s but eventually withdrew it. Later, in 1999, Pepsi opted to distribute AmBev's Antarctica soda worldwide.

Meanwhile, not to be left behind, Coca-Cola launched its own guaraná drink, named "Kuat" after an Amazonian tribal sun god.

The Worrisome Effect of Globalization on Local Communities

Globalization is often a boon because it expands markets. However, the community in which guaraná originated -- centered in the town of Maués in the Brazilian Amazon -- is worried about the berry's increasing popularity.

One might think that this community would benefit from the increased demand. But many feel that it may actually lose out. As the buyers of their berries become ever more concentrated in one or two multinational corporations, they will then exercise monopoly or quasi-monopoly power in the marketplace. As the number of buyers dwindle, the local farmers' bargaining position deteriorates.

Thus, this community -- far from benefiting from globalization -- has actually seen its position become progressively more precarious. Indeed, Superflex reports that the farmers have seen the price they receive for guaraná fall by 80%.

Art in Action -- But Is It Also Trademark Infringement?

Superflex met with local community members to formulate a response. Ultimately, the group decided to work toward creating their own guaraná drink--called "Guaraná Power."

Superflex helped the community design a label for the drink. The label reflects and expresses Superflex's belief that global brands can be used as the "raw material" for "a counter-economic position."

Thus, the label slaps on top of the AmBev Antarctica logo, a bold black-and-white "Guaraná Power" sticker. The sticker obscures most of the Antarctica logo, but the logo is still recognizable to those already familiar with it. Finally, the background of the label -- appearing behind both the sticker and the obscured logo -- is a large photo of persons from Maués. (See the label here.)

Is this use of the Antarctica logo an infringement of trademark? To answer that question, it's first useful to consider the international trademark law regime -- because that legal backdrop is the one that will apply.

International Law and Going Global

In their efforts to globalize, corporations receive strong support from international law -- particularly international trademark law.

Specifically, the Agreement on the Trade-Related Aspects of Intellectual Property Rights, better known as "TRIPS," assists corporations that seek to globalize their markets.

TRIPS establishes two important legal principles relevant here. First, it requires that countries that belong to the World Trade Organization (WTO) must protect intellectual property in specific ways. Second, it requires that such countries must treat foreigners equally to their own nationals (the so-called "national treatment" obligation).

Together, these two principles enable corporations to create global brands because they allow the corporations to protect their trademarks throughout the world. Under TRIPS, not only must WTO-member countries protect foreign corporations' trademarks, they also must protect them just as strongly as they protect local trademarks.

Recently, the United States acceded to a global trademark treaty--the Madrid Protocol. That development should speed along the process of protecting and enforcing trademarks because the treaty eases the administrative burden of seeking trademark registration in multiple jurisdictions around the world.

The bottom line, then, is this: The Antarctica brand can easily enjoy global trademark protection in WTO-member countries. So if Superflex and Guarana Power's makers are violating Antarctica's trademark with their label, they have reason to fear the consequences.

Is the Guarana Power Label an Instance of Trademark Infringement?

But does the Guaraná Power label infringe on AmBev's trademark?

There is reason to argue that it does not--at least if a recent American precedent presents a useful guide.

First, the Guaraná Power label likely does not infringe the trademark directly because there is little likelihood that consumers will be confused. And preventing such confusion is one of the main purposes of trademark law.

Confusion is virtually impossible in this case. The label doesn't present the product as coming from the makers of Antarctica; it presents the product as coming from those who oppose Antarctica. It couldn't be plainer that the makers of Antarctica do not sell or endorse -- and, indeed, are probably annoyed and aggravated by the existence of -- Guaraná Power.

Furthermore, a recent Supreme Court case suggests that AmBev may also not have a case for "dilution" of its trademark. (Dilution can occur without confusion, if the result of a use of a trademark is to diminish its forcefulness as an identifier of a particular product.)

In Moseley v. V Secret Catalogue, Inc., Victoria's Secret sued Victor Moseley for running a shop called "Victor's Little Secret." It was clear that Moseley's shop's name played on Victoria's Secret's shop name. Yet, the Supreme Court held that there would be no dilution of Victoria's Secret's name unless Victoria's Secret could prove an "actual 'lessening of the capacity of a famous mark to identify and distinguish goods or services.'"

Will Guaraná Power's label lessen the capacity of the Antarctica brand to distinguish the product to which it refers? This seems unlikely. The labels are in fact quite distinct. The Guaraná Power label distinguishes itself from the Antarctica mark through the photo of local peoples and the plastering over of the Antarctica mark. Moreover, there may be a defense of fair use because Guaraná Power parodies the Antarctica label by emphasizing how Guaraná Power empowers both the drinkers (through the caffeine) and the farmers (through their participation in the production process), while the Antarctica brand only empowers the drinkers.

Granted, the Guaraná Power label juxtaposes the Antarctica brand with a photo of the people of Maués. It capitalizes on consumers' preferences for real people over large corporate interests. Thus, there may be a negative consequence to AmBev of this design.

But such consequences should not be within the purview of trademark law to remedy. Indeed, they are part of healthy competition in the market. Trademark law worries about consumer misunderstanding, not about consumer choice.

The Guaraná Power label sends a clear message: Buy the "people's brand" rather than a corporate brand. That message neither confuses nor dilutes; it is sharp and clear.

Making Your Own Guaraná Power

The exhibit currently in Los Angeles consists of a production line for a Guaraná Power factory. As this production line suggests, Superflex's work is not anti-commerce. Rather, it seeks to bring more people into commerce, on fairer terms.

Nor is Superflex's work anti-globalization. Rather, it seeks to bring the benefits of globalization to more people. After all, Superflex -- a Danish group that hopscotches around the world -- is itself a prime example of the virtues of globalization.

Superflex's Guaraná Power reflects a new kind of intellectual property activism. It stands alongside projects such as the Creative Commons, the Public Library of Science, iBiblio, the open source movement, and the Public Patent Foundation in seeking to broaden the constituencies served by intellectual property.

Drop by the exhibit and make your own Guaraná Power.


A graduate of Harvard College and Yale Law School, Anupam Chander is Professor of Law, University of California, Davis, and Visiting Professor, Stanford Law School. He is also a blogger. His blog can be found at http://cyberlaw.stanford.edu/blogs/chander/.