A group of Amazon sellers were sued for infringement, involving multiple categories

Infringement lawsuit it's coming again!

On the way to overseas, sellers have more or less encountered infringement disputes, and this is exactly what cross-border e-commerce sellers are afraid of. After all, in these disputes, regardless of whether the seller is the party at fault, the first measure taken by the platform is to "remove the link." Links are the lifeblood of sellers, and if they are removed from the shelves, their financial resources are cut off. Recently, Amazon sellers in multiple categories have been under this threat.

Amazon sellers in multiple categories are sued

The Frida Kahlo Corporation (FKC), the licensee of the name and image of Mexican painter Frida Kahlo, is suing a group of online sellers, alleging they are using the company's trademarks without authorization to sell products related to the iconic Mexican artist.

On March 4, local time, the Panama City-based company filed two lawsuits in a district court in Illinois, claiming that these sellers, under pseudonyms, manufactured and sold "counterfeit or infringing versions" of the company's trademarks and copyrights on third-party platforms such as Amazon, including prints, cosmetics, beverages, smoking utensils, toys, accessories, kitchenware, cameras and masks.

The items reportedly depict Kahlo's trademark visuals, including watermelons, green rings, palm leaves, and pink and blue flowers.

FKC's attorneys said in the lawsuit that the sellers "targeted" Illinois consumers by selling them goods printed with imitations of the company's industrial property through online stores they operated.

“The defendants communicated with each other and regularly participated in chat rooms and online forums to discuss strategies for operating multiple accounts, evading detection, pending litigation, and potential new litigation,” FKC’s attorneys wrote.

FKC now requires these anonymous sellers to pay it a sum of money. Although the specific amount has not been disclosed, it is roughly equivalent to the total profit made by the sellers from selling Carlo products. The second option is to pay a "statutory damages" of US$2 million to compensate for the losses "for each use of counterfeit products."

"Defendants' images, artwork, and derivative works are nearly identical and/or substantially similar to Kahlo's works," the company said in the main complaint. "Such conduct has infringed and continues to infringe Kahlo's works in violation of U.S. trademark law."

FKC was founded in 2004 by Carlos’ niece, her daughter and a Venezuelan businessman. The company is headquartered in Panama City, the capital of Panama. The company owns nearly 30 trademarks related to Carlos, including the artist’s name and image, as well as soaps, cigar cutters and kitchenware printed with his portrait or works.

Frida Kahlo

This is not the first time FKC has defended its rights

Monday's lawsuit is not FKC's first battle to control Kahlo's image rights. This lawsuit follows a lengthy legal battle between the company and Kahlo's great-niece, who filed for a temporary injunction in Mexico in 2018 to block FKC's marketing and sales of Kahlo dolls in Mexico. But in late 2021, the Mexico City Superior Court ruled in the company's favor, overturning the injunction and reaffirming FKC's legal ownership of the artist's brand.

Kahlo was active in communist and anti-imperialist political circles for decades before her death in July 1954, and her political ideas influenced much of her work. She drew inspiration from the Mexican Revolution of 1910 and its aftermath, incorporating themes that celebrated women, nature, and the indigenous peoples of Central America, and attacked the capitalist systems of the United States and Europe.

In this context, over the decades, artists created and disseminated works inspired by Kahlo. Some of the earliest artists were Kahlo’s own friends and students, who spent time at her childhood home in Mexico City, La Casa Azul (now Museo Frida Kahlo).

Their art philosophically and legally challenges the idea that anyone can own the estate of a famous artist, especially those critical of the concept of private property.

In 2019, a folk artist named Christine Melo filed a federal lawsuit against FKC, hoping to stop the company from banning her from selling paintings inspired by Kahlo online. In her lawsuit, she accused the Venezuelan businessman, Dorado, of using his business acumen to "deceive" the Kahlo family into giving him control of Kahlo's estate, and argued that Kahlo himself was "well-known for supporting and championing the art and craft of local artisans."

Merlo also wrote in the complaint: "FKC appears to have issued improper, broad infringement notices ... pressuring artists to either cease making artwork in homage to Kahlo or join FKC's program."

That same year, another folk artist named Nina Thorpe filed a similar federal lawsuit in Colorado, seeking to protect her handmade Carlo dolls from FKC because the company was behind the Carlo dolls that were made in partnership with Mattell and launched in 2018.

The doll has lighter skin, lacks Kahlo's signature straight eyebrows and does not have the prosthetic limbs she wore in her later years, which has sparked infighting between Kahlo's family and FKC, leading to lawsuits in courts in Mexico and Florida.

In 2018, FKC sued Carlo’s great-niece, Pinedo, for defamation and trademark violations in a South Florida federal court. The company said she was trying to undermine its partnership with Martell and falsely stated on social media that it could not sell products using Carlo’s image without her consent.

The company argued that Pinedo's comments on social media disparaging FKC's trademark rights coincided with the announcement by FKC and Martell that they would sell a line of dolls commemorating Carlo.

According to court documents, Merlo voluntarily withdrew the lawsuit in April 2021 after reaching a settlement with the company; Thorpe also withdrew the lawsuit in April 2020. In September 2021, a federal district judge in Florida dismissed the doll-destruction case against Pinedo, but in December of the same year, the Mexico City Superior Court ruled in favor of FKC on this issue.

In conclusion: In the cross-border circle, it is not uncommon for well-known foreign artists to sue online sellers for infringement. Many sellers feel wronged, thinking that they only used a few pictures, so how could they infringe. In these cases, sellers often think that the pictures are good-looking and printing them on products will definitely help sales, so they use them on products, but they did not expect that these pictures are copyrighted, and sometimes trademarks are involved. Some of these pictures may be portraits of these celebrities, and some may be their works, so when the product needs to use some pictures, sellers must be more careful to confirm whether there is infringement.

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