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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.
Hermes, copyright Markos Gage
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.”
![Bronze Statue depicting Hermes; Stuttgart, Germany [Public Domain via Pixbay]](https://wildhunt.org/wp-content/uploads/2015/10/stuttgart-68754_640-500x375.jpg)
Bronze Statue depicting Hermes; Stuttgart, Germany [Public Domain via Pixbay]
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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This is weird, because there’s a huge difference between copyright and trademark, and LLL’s advice is absurdly off the mark. Even the most basic understanding of TM law would suggest that the artist ability to do work as ‘hermes’ is in the clear. Whether that means you can label something on a private third-party’s website is something else entirely: it’s pretty obvious what etsy and other sellers are trying to prevent is someone selling knockoff Hermès gear on their site, not to preclude some pagan from ever putting the word on art. If you worship a god Coke, you could absolutely put the name coke on stuff, and even sell it. This stuff happens all the time – the issue with TM is the likelihood of confusion. Putting “Nike” on shoes and selling them is probably going to confuse someone about the brand of the shoe. Putting Nike on a bust, painting of greek gods, or any variety of other things is not.
Also, there’s no such thing as the right to name your business whatever you want.
He’s not doing business as Hermes, he’s selling products that include Hermes in the name, because they are art depicting Hermes. His business is at risk, and was interrupted, because those sites shut him down for having products named Hermes.
MadGastronomer is correct.
I’m not attempting to use the name for my business, or trademarking the name. I’m using “Hermes” to describe an artwork dedicated to the god.
Shouldn’t the accent mark on the French trademark make this a non-issue? They’re different spellings.
The problem is that English speakers regularly don’t use the accent. In English, they’re the same.
Trademarks do not give the bearer total ownership of the word/phrase, only in a specific context where confusion may arise. So you can’t make, say, a scarf and call it a Hermes scarf. But this is more akin to painting a picture of Lake McDonald and then having McDonald’s try to assert trademark infringement. No one will reasonably think your landscape painting is somehow related to the fast food restaurant.
Since the company Hermes does not seem to be actively pursuing a trademark claim here, the issue appears to be more a case of the third-party sellers like eBay and Society6 wanting to avoid potential lawsuits by preemptively banning all words associated with trademarks. This is obviously a ridiculous and ineffective policy as it removes perfectly legal and necessary keywords people might reasonably need to use to list their items. It is also clearly being applied haphazardly, as a quick search on eBay for “Hermes god” (to distinguish from the famous company’s stuff) comes up with many statues and other items.
I don’t know if, legally, these websites can set whatever rules they want, and then apply them unfairly and inconsistently. But I’m guessing that if enough people wrote in and complained, it might at least get their attention enough for them to re-evaluate, or realize they need to make exceptions for reasonable cases like this one. I’m frankly surprised that, once an explanation was given, they didn’t simply relent, especially when they have clearly let other items slide.
I find a certain irony that the representative lawyer of LLL is named Minerva.
I think it’s delicious!
Americans United isn’t likely to touch it. It’s nothing to do with them.
The wisest course is to ignore the French claim altogether and force them to initiate litigation. The bad PR they would get could bankrupt them. And if the issue is third party websites policies, such as ebay, create your own.
The problem being that it’s hard to ignore it and go forward when corps like eBay are enforcing it ruthlessly. He could certainly start up his own web store, but the amount of exposure, and hence his potential customer base, would be decimated.
Yes – try selling a used Hermes scarf on eBay.
Let ‘s get someone to copyright god, yahweh and allah and we’ll see who laughs then.
That is pretty much my thought. Let someone copyright the name Jesus – even someone named Jesus – and watch people lose their tiny minds.
Something I wanted to say earlier, but was busy, is that this is not a copyright issue. I wish The Wild Hunt would correct that.
Copyright relates to automatic rights granted to a creator upon creating something. These rights enable the creator to dictate the use of their work, but they are not required by law to prevent people from using the creation.
Trademark is the correct term to use.
Trademarks are names, logos and brands (Registered trademarks) related to a business that must be maintained, by law, by the owner, to maintain rights of the trademark.
The terms copyright and trademark are often mixed up, it’s an easy thing to do, but they are distinctly different.
.
The issue is, trademark enforcement of holders is limited under ‘fair use’. Which, to my knowledge, are common laws in my own country and United States of America. As I understand it blanket banning a name or term is a break of fair use laws.
(Please note: I am not a lawyer, maybe I’m wrong, but this information is freely available online and clearly defines the differences between copyright and trademark, and trademark fair use.)
~Markos Gage
Because even I cannot keep the blasted terms separate, I just refer to them as IP (intellectual property) laws. Patent law tends to be separate from that–but I could be wrong. Not all IP law firms cover Patent law, nor all Patent firms cover mainstream IP law.
As with Markos, I am not an attorney, I just seem to pay more attention than the mainstream citizen to the details thereof.
As far as I know, you are correct. Patents are designs that are registered as unique and owned by the creator.
Trademarks are terms, names and logos etc. registered and owned by an individual.
Copyright is automatic and granted to a creator. For example, I own the copyright of the Hermes logo design featured in the article. It is not a trademark and not a patent.
Given how many patent reviews my husband has endured with his former employer Ricoh, I certainly know what patents are–and even the heraldic kind, courtesy of the USA.
If however, a heraldic Patent of Arms were sought in Scotland (or anywhere else for that matter) of
Gules and Or, semé of oxen proper, a bend archy engrailed brown
they would easily be denied. The filed represents ketchup & mustard, with lots of oxen in their own color, with an arched bend of brown with what looks like toothmarks along both edges.
Sorry. I don’t care how long the company has used the name. You cannot copyright or trademark the name of a mythological figure, in any country. The people using the trademark are clearly in the wrong.
You may find, in the US at least, plenty of uses of Mercury in a name having nothing to do with cars–although the insurer may come close. Mercury also being an element (the reason behind the mercury in the San Jose Mercury News being that there were mercury mines in the area when the newspaper was founded, which may have been before such stringent trademark/copyright laws), as well as the name of a Hellenic God, may have had something to do with Mercury never having been trademarked or copyright to which ever corporate identity came first.
I believe that the Hermès trademark should be limited to that spelling alone, as the company name, only. The logo is certainly protected by IP laws in the US, and we know this artist does not seek to use anything like it.
While The Mouse can and does control anything produced by that company, anything regarding the company’s founder, they also then copyright names and images of anything created by that company. They are sharklike in enforcing their rights, perceived or real, as are Coca-Cola and MacDonald’s. Coca-cola is the most rational of the three, IMNSHO. MacDonald’s has often gone overboard in prosecuting anything bearing the names MacDonald or its plural, as well as its possessive, even to those entities which predate it, and should have been grandfathered in, such as with Clan Donald.
I don’t know if the Hermès family or firm has been asked how they feel in this manner, or whether everyone is just so afraid of dealing with copyright/trademark infringement that they make assumptions.
How would this affect any IP issues surrounding Hermes Pan, the dancer, choreographer, and revolutionary film cinematographer, I could not say. His Americanized name gave him two gods’ names, but his Greek father named him:
Pan was born Hermes Panagiotopoulos in 1909 in Memphis, Tennessee, of Greek extraction. His father, the Greek consul in Memphis, Tennessee was from Aigio in Peloponnese, where his family had opened the first theatre. (via Wikipedia)
I wish the artist all the best.
When I see “Mercury” in the name of a newspaper, I presume it is a reference to Mercury’s role as swift messenger.
Here’s what Wikipedia says:
The San Jose Mercury was founded in 1851 as the San Jose Weekly Visitor, while the San Jose News was founded in 1883. In 1942, the Mercury purchased the News and continued publishing both newspapers, with the Mercury as the morning paper and the News as the evening paper. In 1983, the newspapers were merged into the San Jose Mercury News, with morning and afternoon editions. The afternoon edition was later abandoned.
The paper says that the name “Mercury” refers to the importance of the mercury industry during the California Gold Rush, when the city’s New Almaden Mines (now Almaden Quicksilver County Park) were the largest producer of mercury in North America. The name has a dual meaning, as Mercury is the Roman messenger of the gods as well as the god of commerce and thieves, known for his swiftness, and the name Mercury is commonly used for newspapers without the quicksilver association.
How can someone “copyright” a name that has already been around for centuries?
ask McDonalds Corp. They believe they can, but thus far, up against Scots, they’re nae doin’ a’ that weel.
They can’t. The Wild Hunt is completely wrong it call it a copyright dispute.
The root problem seems to be more of a battle with faceless entities that run online corporations. They stonewall you with automated responses and faceless emails, if you actually communicate with a human you never talk to the same person twice, and they all parrot the party line giving no quarter in situations like this one. My question to them would be “If the Hermès trademark is related to the family name/name of the founder and not the Hellenic God, then how can I possibly be infringing on their trademark?” Trademarks are associated with specific products or services by specific providers. The artist is not selling scarves, handbags, or anything else associated with the Hermès line nor is he using or referring to the Hermès surname. The real fight is in getting corporate juggernauts like eBay to simply pay attention. They find it all too easy to bulldoze over people who are doing nothing wrong.
What about Follower of the God Hermes, or Follower of Hermes, or the God Hermes?
I am a devotee of Hermes. 😉
I know that. That is why I suggested these possible names for your work and business.
1.) Does it make sense to assert that religions hold primary intellectual property rights to the names of their Deities?
Or are Deities and their names accessible to all of us, at any time and place and circumstance?
2.) Does it matter at all which Deity names are used to identify creative works or business operations?
For instance, no businesses named Jehovah come up under a few casual internet searches. Businesses related to Jehovah’s Witnesses top the lists, but that’s not an official name.
Would some Christians be irked by a business with Jehovah in its official name?
3.) Litigious society. So plenty of cautious behavior and policies around potential litigation. Imagine that!!!
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