If you were a Louis Vuitton waffle, would you eat yourself? (Admittedly, this opening line was shamelessly intended to provide an opportunity for including that hyperlink.) Apparently, this is now a possibility thanks to the efforts of Los Angeles based artist Andrew Lewicki. For reasons that will likely always remain unknown to me (perhaps because of my modest Minnesota upbringing), Mr. Lewicki has machined the classic Louis Vuitton pattern into a waffle iron and called it art. This waffle maker has been getting a bit of press (here, here, and here) and has, no doubt, exposed me to Mr. Lewicki’s work when I likely would not have otherwise been exposed to it.
To trademark afficionados, this begs the obvious question of whether Mr. Lewicki is guilty of trademark infringement. There is little doubt that he would be guilty if he warmed up the conveyors and started punching these babies out through mass production. However, based on his website, he’s only created an edition of 3. Does this rise to the level of infringement, or does the minimal reproduction and the fact that it is arguably “art” give him a defense based on fair use?
Personally, I would think any reproduction by Mr. Lewicki could create a likelihood of confusion about whether his waffle makers were sponsored or affiliated with the actual purveyors of Louis Vuitton products. Moreover, I think it would be extremely difficult to make out a case of fair use, particularly if Mr. Lewicki is selling these works for a handsome profit. To a cynic such as myself, it looks like he is simply trying to profit off of the great brand recognition currently enjoyed by Louis Vuitton, and if Louis Vuitton really wanted to stop this use, they could. What do you think?