Can my client use this banner for social Media?

'Is it legal', 'can I do this' type questions and discussions.
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Tyler.exe
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Can my client use this banner for social Media?

Post by Tyler.exe » Fri Feb 02, 2018 6:08 am

Hey, I am a freelance designer that made free work for a client and is not intended to sell or distribute. Its a photo taken of a Marlboro package used for a youtube banner for a channel revolving around smoking and nicotine products. This banner wont be used to advertise his channel but more to personalize it, like most social networking banners are for. The banner consists of a background wooden table with a pack of red Marlboro Cigarettes on top. The photo has been altered to expand the dimensions of each side of the frame and has been color graded and filtered. This photo was also not taken by the Phillips Morris Company or copyright owned by them. Also the pack of cigarettes has been debranded by taking any source of label, logo and name off of the pack. All thats left is the classic red and white pack with the lion insignia, which has also been altered to state the initials of the channel name "NickTheSmoker(NTS)." The client does like the work done, but he said "due to outstanding trademarks that photo could be deemed as a trademark violation." The only aspect of the picture that signifies the brand Marlboro is the lions insignia, the red and white color scheme and the font style. The font style could possibly be owned by them but the font was downloaded from "My Fonts.com" here: https://www.myfonts.com/fonts/urw/marlb ... nsing.html. The font is similar to many other fonts and easily can be confused with a licensed font. The terms for the use of the font is listed but doesn't acknowledge the possibility of this scenario. So can my client use it?

Here is the altered Image: https://imgur.com/7BFU4An

Here is the Unaltered Image: https://imgur.com/TAeSN4t

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AndyJ
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Re: Can my client use this banner for social Media?

Post by AndyJ » Fri Feb 02, 2018 4:52 pm

Hi Tyler,

Although you have been clear about what the purpose of this graphic is not, I'm not clear what it is for. It sounds like it will be your client's personal logo, and so the rest of my response here is based on this assumption.

You say your client doesn't intend to sell anything using either this logo or the website/social media profiles on which it will feature. On that basis there doesn't appear to be any proposed commercial use, therefore trade mark law is not really engaged. This is as well, because I suspect that Phillip Morris might well consider your design to be infringing. While you have removed the product name, the other main elements of the Phillip Morris packet are very identifiable and thus might well confuse the buying public. The fact that your design is a parody makes no difference with respect to trade mark infringement.

Then there's the issue of possible copyright infringement. Here again I think you are on fairly safe ground. While it is certainly arguable that you have copied a substantial part of the original graphics (for instance the red polygon, and the lion and unicorn crest) but because as I have mentioned, yours is obviously a parody, you should be able to rely on the new exception for this type of use.

So on the basis of both trade mark and copyright law, you should be OK with this design, but don't expect Phillip Morris International to see it that way if they become aware of it. It would be sensible to make sure your client knows he might face a threatening letter or two, even though as I say, there seems to be very little legal basis for their claims.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Tyler.exe
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Re: Can my client use this banner for social Media?

Post by Tyler.exe » Sat Feb 03, 2018 3:16 am

While i greatly appreciate your response. I still am a little weary on the matter. I would still appreciate another response if you or someone else has any further information on the subject. Again, thank you for your time and response!

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