Burberry's suit against Burberry Perry is the latest in a long history of brands and artists clashing over trademark infringement.
Burberry Perry's self-titled EP artwork
Last week, the British fashion house Burberry filed a lawsuit against Burberry Perry, the Atlanta producer and rapper who has recently found some renown for his work with close friend and fellow teenage sensation Lil Yachty. Perry produced Yachty’s hit single “1Night,” and the two appear side-by-side on a number of tracks. In May of this year, Perry released his first self-titled EP, a giddy, weird set of raps that immediately drew tabloid attention for including a track called “Beautiful Day” that featured Kylie Jenner. But that wasn’t its only branding coup. The EP was wrapped in the famous Burberry plaid, and at the center, sat a slightly simplified version of Burberry’s famous equestrian logo above the text “BURBERRY PERRY ®.”
Burberry, legally speaking, did not find the day in the neighborhood to be nearly as beautiful as Perry, Yachty, Jenner, and co. intended. In their complaint against Perry, the company alleged that his use of the Burberry name, the Burberry plaid pattern, and the Burberry equestrian logo infringed their trademark rights. Burberry says they sent multiple cease and desist letters to Perry that were met with silence before filing the suit, according to the filing. After being served with the complaint, Perry changed his cover artwork online and announced that moving forward, he would be going by the name “TG PERRY” or “THE GOOD PERRY.” Lil Yachty, meanwhile, tweeted his frustration with the situation, no doubt echoing the thoughts of many fans: After all, is making an artist change their name in this way really fair to artists or the concept of art itself? And can a brand even do something like that?
Trademark law, at its core, seeks to prevent consumers from being confused. Burberry alleges that Perry’s use of the Burberry marks will cause “consumers to mistakenly believe that Defendant is affiliated with, endorsed or sponsored by, or somehow connected to Burberry.” Famous trademarks can also be protected against deterioration in other contexts, even when no confusion is present, under what is known as dilution law. Burberry invoked this concept as well, drawing a connection between Perry’s use of “swearing and offensive language” and the EP’s “NSFW” content with the fact that if allowed to continue, his use could diminish the value of Burberry’s trademarks.
Perry is by no means the first rapper to incorporate a luxury brand into his stage name or to rely on one as an instrument of his persona. Gucci Mane and Jazz Cartier, among others, implicate famous brands in their names. And countless songs and albums are titled after or feature luxury brands as symbols of affluence. Rarely does rappers’ use of luxury brand names rise to a level that instigates a trademark lawsuit, however. Although Perry has already expressed his intention to wholly relinquish the Burberry name, he may have done so in haste. Indeed, Gucci has for years appeared basically unconcerned with Gucci Mane’s use of their famous trademark, although admittedly his use is significantly more understated than that of Burberry Perry.
In March of this year, Rolls Royce filed and subsequently won a trademark infringement suit against another Atlanta rapper, at the time known as Rolls Royce Rizzy. Like Perry, Rizzy failed to respond to various notices from Rolls Royce. When the lawsuit was filed, he did not appear in court to defend of his use of the Rolls Royce mark and instead changed his name to Royce Rizzy. The court, forced to rely only on Rolls Royce’s arguments, found that even though there was no possibility of confusion by consumers, the rapper's image, could "create negative associations with [Rolls Royce’s] products." In support of this, the court specifically pointed the parental advisory for explicit lyrics on Rizzy’s album and to a flier for an event hosted by Rizzy entitled “Call of Booty” which featured “scantily clad women and advertises a booty shaking contest.”
Additionally, Rizzy’s blatant use of the “RR” Rolls Royce logo on T-shirts pushing “Team Rolls Royce” was clearly at odds with Rolls Royce’s interests, as they too produce T-shirts and comparably branded merchandise. However, in Burberry Perry’s case, since his use has so far only been in connection with digital music and demonstrative of his affinity for Burberry products, the intersection is subtler. And just because a brand files a lawsuit doesn’t mean they deserve to get their way: Surely there is an argument that there is some artistic merit to rappers using these brand names, right?
In 2000, Mattel sued MCA Records for pop group Aqua’s use of the Barbie trademark in their song and video for “Barbie Girl.” After a lengthy battle, the court found that Aqua’s use was not confusing because the title of an artistic work was viewed differently than a commercial product: “consumers expect a title to communicate a message about the book or movie, but they do not expect it to identify the publisher or producer.” Like Burberry and Rolls Royce, Mattel also claimed that the song and video would tarnish their reputation. The court disagreed with Mattel on this point, noting that “Barbie Girl” was First Amendment-protected speech because it “lampoons the Barbie image and comments humorously on the cultural values Aqua claims she represents.”
There are distinct differences between Perry’s use of Burberry’s trademarks and Aqua’s use of Barbie; in particular Perry centered his entire public persona around the Burberry brand, and for Aqua, the appropriation was limited to the title of one song. In addition, the brands that are invoked have different legacies and different reputations, such that different speech could be found to have differing effects on them. Whether the name of an artist or his cover artwork would fit into the above exception for titles is unclear, but there is an certainly argument in favor of it.
Although the court in the Rolls Royce case was limited in their review because Rizzy didn’t submit any arguments, the decision does not consider the possibility that his use of the name might invoke a level of cultural commentary in the same way the court ruled the Aqua song did. It was, however, up to Rizzy to make this defense. Since he did not, the court is not required to argue on his behalf. The two different outcomes suggest, though, that these rappers might be setting up a dangerous precedent by not fighting back. Without being presented with an argument to the contrary, courts seem unfairly quick to pronounce that an association with rap music implies a negative consequence for a brand.
Although Royce Rizzy and Burberry Perry are relatively small-time—neither, at the time of their lawsuits, had a record label or the international pedigree that Aqua had behind them—their plight is nonetheless worth consideration. Litigation can be expensive, but if rap artists continue to surrender when faced with a complaint, nobody will defend their interests. Apart from a throng of unfavorable cases, the overwhelming result is a lack of public acceptance and acknowledgement of the artistic merits of their speech. It seems unlikely that all of Burberry Perry’s or Royce Rizzy’s use of trademarks are fair, but some might be. The foreseeable threat is that without fighting in support of this kind of speech, brands could scare artists from fairly using their marks, silencing artists and curbing creativity.
Jessica Meiselman is a lawyer based in New York City. Follow her on Twitter.