another legal question - "upcycling"

[aimo]

What is being called "upcycling" is all the rage - taking something that would normally be discarded/thrown away and using it to make something completely different. You see a lot of this on sites like etsy.com (love that site!) But I wonder about the legal issues of making something that may have a brand name, logo, etc visibly on it and then reselling it. For example, there is a seller that takes old soda cans, stamps out a piece in the shape of Hello Kitty, and then makes it into a pendant or magnet. It's obviously Hello Kitty and it's obviously the Pepsi logo.

http://www.etsy.com/view_listing.php?listing_id=33668209&ref=sr_list_2&&ga_search_query=hello+kitty+can&ga_search_type=handmade&ga_page=&order=date_desc&includes[]=tags&includes[]=title

Plus, the seller advertises it as such and even offers other brands of beverages if you so choose. Would Sanrio and Pepsico have a case against this seller? Can the seller argue that s/he is simply using trash? If she didn't advertise the fact that it's Hello Kitty and Pepsi, would s/he be OK? Companies can't complain if it's for one's own use, correct? Just if it's being sold?

Appreciate any info . . .

[Pacer]

From the Trademark perspective, the test is "liklihood of confusion."

Here, there is little liklihood that a purchaser would think that the item itself was coming from Pepsico.

However, Pepsi is likely considered a famous mark and is therefore afforded additional rights (the ability to enjoin any use that would "dilute" their mark). In short, Pepsi could cause a fuss if they wanted to... and they wouldn't be out of line for doing so.. who knows if they would win.

From the copyright perspective, the owners of the Hello Kitty (which likely enjoys trademark and copyright protection) likely have a stronger case for enjoining this activity.

"simply using trash" is not a valid argument. Nor is there any sort of first sale doctrine here. (Generally, the first sale doctrine says that once a rights owner gets royalties from a sale, they don't have the right to enjoin further downstream sales of that item... this allows you to re-sell a book you buy).

So, yes, there are a number of ways that this seller could be sued. Most clearly, the seller is treading on the goodwill built up in Hello Kitty.

Also, whether the seller advertises it as hello kitty or as pepsico isn't dispositive of the issue. Trademarks are advertising in themselves.

Also, Trademarks cover use in commerce... if someone just makes this for themselves and doesn't sell it, then it is arguably not being put into the stream of commerce. I doubt any rights holder would bother going after someone making a craft at home for their own use.

[moonpie23]

it is directly related to how much money the seller is making.....