MELBOURNE, Austrailia — Hermes is a god of communication and lies; commerce and thievery; craftiness and trickery. Some people equate him with Mercury whose eponymous planet challenges communication when it moves retrograde. Therefore, it may not be surprising that Hermes is now at the center of an imbroglio that pits corporate interests against an individual artist seeking to sell drawings of the gods. In an arena framed by international treaties, the First Amendment of the United States Constitution, and decades of copyright and trademark law, the crux of the matter is this: can the name of a god be trademarked or copyrighted, or is it not appropriate to limit the commercial applications of such names?
There are plenty of business ventures that share the names of gods. Nike is perhaps the most prominent, but as she is less well-known people don’t always associate the shoe company with the goddess of victory. Poseidon is a more familiar deity name, but likely only divers know that it’s also an undersea equipment manufacturer.
Hermes seems to hit a sweet spot, being a god with widespread modern recognition, as well as enough commercial allure to feature him in a flower-delivery logo, and his name on a line of popular scarves and purses. It’s likely that latter usage — as the name of fashion company — that ran afoul of artist Markos Gage’s desire to create and sell art featuring Hellenic gods.
Despite the fact that Gage’s work is in no way similar to the perfumes, accessories, and luxury goods produced by the French company, he strongly suspects that brand protection is the reason some online sites have banned his use of “Hermes” to describe art that depicts the messenger god with his winged helm and shoes.Two sites, Ebay and Society6, have denied him use of the name, citing the possibility that someone else owns the rights to it.
Hermès is actually named for its founder, Thierry Hermès, who was in turn named after his own father, rather than a god. Hermes and Hermès are not unusual surnames, but this particular Hermès started a harness shop that would eventually become a large fashion enterprise with lawyers hired to protect its brand. Gage, who blogs and sells his art under the moniker the Gargarean, doesn’t know for sure that the high-fashion company is behind his woes, but he recounted some clues in one recent post:
This first started with eBay. I owned a professional store on eBay with hundreds of listings paid in advance. One morning in 2007 I woke up to find my store closed and listings removed because I infringed on a trademark.
I was shocked, all my listings were original content written by me and the artwork made, by hand, by me. After two weeks of having my business closed down, effectively losing an income, back and forth exchanges between robotic eBay customer service via email and phone I had my store restored. All but the Hermes listing.
More recently he tried to upload some of his art to the site Society6, and the process was blocked with a message indicating that “it appears to contain distinctive words that may belong to another rights holder.” In response to his inquiry, Gage got a message, saying in part:
. . . in an effort to respect the rights of intellectual property owners, we are not able to support the inclusion of certain words, names, phrases, or combination thereof in artist submissions. In this particular case the word Hermes was used and we are not able to support the inclusion. Please replace this word to your description accordingly. All words in your listing must be accurate and refer only to the item for sale.
Frustrated, Gage blogged, “I am effectively banned from using the name Hermes in reference and correct context for devotional items designed for the Polytheist / Pagan community because the name is trademarked. I am having external corporate services recommending that I use alternative names in replacement of the deity that I have dedicated my work towards.”
He’s contacted artist advocacy groups in his native Australia, and has also reached out to the eponymous company in hopes that someone there would recognize that his work is not likely to be confused with high-priced handbags. So far he’s at a stalemate and is resigned to seeking out sites that don’t filter out the use of Hellenic deity names.
The Wild Hunt also made a few inquiries. No response was received from Ebay or Society6 seeking clarification on their policies and whether they were vetted by any attorneys or rooted in a specific legal precedent. Additional queries were sent to Americans United for Separation of Church and State, Lady Liberty League (LLL), and the American Intellectual Property Law Association.
Only Minerva, the LLL attorney, responded in time for this story. She immediately recognized this question as representing a legal morass. “It’s unfortunate that he’s stuck because the Hermès brand has been out there for so long,” she said, “and while it’s not his intent to do anything to besmirch trademark, it is branded and trademarked.”
She was quick to explain that she is not a copyright and trademark law specialist, “but that basics are that he can’t use that. He could change the spelling of the name, he could use ‘Mercury’ instead” — although she later recognized that the car brand might cause similar issues — “or he could say ‘in honor of’ or something like that, but the awful truth is that he can’t do it.”Her understanding of United States law is that Gage’s right of religious expression is not being violated, but his right to name his business or products what he chooses is definitely being infringed. “It’s a fine distinction. It’s not infringing upon his right to practice, but if he were worshiping a god named Coke, he could certainly not call things he made honoring that god ‘Coke.’ It’s the same principle. It’s unfortunate, but that is the law.”
However, her research suggests that such a case has never been tested in American courts. In addition to the age of the Hermès company, the fact that it’s got a global presence makes it all the more difficult to work around. Short of legal action, all she could recommend is finding appropriate epithets of the god, or other ways to describe such art.
That’s not good enough for Gage, who had some of his readers suggest a similar approach. In response to those comments, he wrote:
The name ‘Hermes’ is the name we use to understand the god in the English language. Using an alternative is complying with the unfair trademark laws of the website and actually supporting their claim to the name. So no. It’s either they allow us the right to use the name or no service.
When asked if the lack of case law means that there would be no hope for such a case, Minerva replied, “No. There is always new ground. It simply means that the complainant must find other grounds upon which to take action. For example, in Roe v Wade, much of the decision hinged on right to privacy and not the right to abort.”
Gage has vowed to continue this fight and is waiting to hear back from the Arts Law Centre of Australia. He was referred there by staff at the National Association of Visual Arts, who warned him, “The main problem you may come across is that your dealings have been with American companies operating under American copyright and intellectual property law. What the companies are concerned about is being liable for trademark infringement as they can be considered to be infringing just by offering a way for you to sell your work using a trademarked word. These companies may have perhaps been advised by their own lawyer to not allow the use of trademarked words.”
No matter how complex this situation, it’s not likely to go away anytime soon. Should there be more developments, The Wild Hunt will be there to report on this ongoing story.
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