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Recent Case Notes & Commentary

PRESERVING A LEGACY: KEITH HARING’S ART

The Keith Haring Foundation Inc. v. Huang Lidong / Zhuhai International Trading Co., Ltd.


FORUM Claim Number: FA2308002058669


September 24, 2023


Kieth Haring artwork © Keith Haring Foundation

PROLOGUE


Keith Haring (1958-1990), was a major figure in art world, famous for his contributions to a wide range of artistic endeavors and public causes, especially his distinctive pop art that emerged from the New York graffiti subculture of the 1980s.


Keith passed away in 1990. He had established a Foundation to house his works of art, preserve his legacy and generally to promote worthwhile causes, which it has done to this day.


Perhaps the best way of describing the work of the Foundation is to quote from its website:


The mission of the Keith Haring Foundation is to sustain, expand, and protect the legacy of Keith Haring, his art, and his ideals. The Foundation supports not-for-profit organizations that assist children, as well as organizations involved in education, prevention, and care related to AIDS.


Keith Haring (1958-1990) generously contributed his talents and resources to numerous causes. He conducted art workshops with children, created logos and posters for public service agencies, and produced murals, sculptures, and paintings to benefit health centers and disadvantaged communities. In 1989, Haring established a foundation to ensure that his philanthropic legacy would continue indefinitely.


The Keith Haring Foundation makes grants to not-for-profit groups that engage in charitable activities. In accordance with Haring’s wishes, the Foundation concentrates its giving in two areas: the support of organizations which enrich the lives of underprivileged children and the support of organizations which engage in education, prevention, and care with respect to AIDS and HIV infection.


Keith Haring additionally charged the Foundation with maintaining and protecting his artistic legacy after his death. The Foundation maintains a collection of art along with archives that facilitate historical research about the artist and the times and places in which he lived and worked.


BACKGROUND TO THE DISPUTE


Keith Haring’s distinctive style of drawing and painting made him a popular artistic and cultural hero and icon. But it was probably the case that his distinctive style has, over the years, attracted some bad actors who have copied it and in various ways tried to commercially exploit such artwork.


One such case occurred recently, and the founder and editor of Domain Times was called on to arbitrate the ensuing dispute.


Briefly, what happened was that a party in China decided to copy Keith Haring’s work and claimed that it was selling merchandise, describing them as genuine, such as a Keith Haring doormat, Keith Haring T-shirt, Keith Haring Sweatshirt, blankets, rings, aprons and other goods. The illustrations accompanying the merchandise purported to be genuine Keith Haring designs, drawings and other depictions.


The dispute that came up for arbitration was between The Keith Haring Foundation and the Respondent who had registered four domain names and set up four corresponding websites to promote the alleged Keith Haring merchandise. The Respondent was served with the complaint and the claim, but respond, ergo did not defend it.


The domain names of the Respondent under contention were <keithharing.store>, <keithharinghoodie.com>, <keithharingshirt.com> and <keithharingsweatshirt.com>.


When the domain names were clicked on, users were directed to websites where the counterfeit products and alleged Keith Haring illustrations were displayed.


The Keith Haring Foundation owns registered on December 5, 1995 and March 12, 1996 respectively and uses its own official <keithharing.com> and <haring.com> domain names and uses them in its official activities. On the other hand, the Respondent registered the <keithharing.store> domain name on March 21, 2022, the <keithharinghoodie.com> domain name on June 22, 2022, the <keithharingshirt.com> domain name on June 30, 2022 and the <keithharingsweatshirt.com> domain name on October 9, 2022, much later than the Complainant.


Further, the Foundation owns several KEITH HARING trademarks registered in multiple jurisdictions, such as the USA, EUIPO and China, the latest of which in China was registered in 2008. The Foundation also owns the copyright of the Keith Haring artworks. The Chinese party was the registrant of the four domain names.


The Foundation, in its Complaint, prayed for an order that the domain names be transferred from the Respondent to the Foundation.


THE ISSUES


CONFUSINGLY SIMILAR


The Panel had no difficulty in finding, first, that the domain names were confusingly similar to the various KEITH HARING trademarks. That was fairly obvious because when upon seeing the domain names, users would easily assume that they were legitimate and set up by or with the approval of Keith Haring/ his Foundation and under his trademarks.


RIGHTS AND LEGITIMATE INTERESTS


The Panel also did not have any difficulty in finding in favour of the Foundation on the second issue, whether the Chinese party had any right or legitimate interest in the four domain names. The Panel found that the Respondent had no such right or legitimate interest. That was because it was using the KEITH HARING trademark without permission, misusing the Foundation’s copyrighted art work, falsely pretending the merchandise was genuine and, in effect defrauding its potential customers. In effect, the Respondent was typosquatting on Complainant's KEITH HARING trademark and official domain names, impersonating Complainant and displaying, by means of extensive text and photographs, material of the same genre as is displayed on the Complainant's own website. It also made the fatal mistake of claiming on its website that the merchandise was “real” and “official”.


BAD FAITH


On the third issue, the Foundation had to prove that the domain names had been registered and were being used in bad faith. This, also, it was able to do. The conduct already referred to was clearly bad faith when the domain names were registered and it remained in bad faith while the domain names were being used to sell the illicit merchandise. The domain names and the websites used the Foundation’s copyrighted artwork, claiming that the merchandise was authentic and affiliated with Keith Haring when it was not. The false, listed merchandise was being used to defraud customers. The Respondent was inducing customers to believe that the goods were authentic when they were not, and that is clearly bad faith. The Respondent was attempting to illegally profit off the goodwill and reputation of the Complainant.


Finally, the case against the Respondent was really proved by the assertions it made on its four websites, such as: “Keith Haring Sweatshirt – Official Licensed”, “Our merch comes up with Keith Haring real merch…,” “you can shop entirely Keith Haring merch collection,” “Keith Haring Official Store Mission,” and “We only offer products from trusted and reliable brands.” As the Panel said in its decision, “These and other statements are clear and, on the evidence, false assertions that the products offered for sale are genuine articles produced under the KEITH HARING mark”.


The Order was made, therefore, that the domain names be transferred to the Keith Haring Foundation.


The decision may therefore be seen as a small contribution to keeping Keith Harings’ memory and legacy alive.


Addendum: Readers in Melbourne, Australia will be interested to know that Keith Haring visited Melbourne and, whilst there, he painted a mural on the side wall of the Collingwood Technical School, Johnston Street, Collingwood. It is clearly visible from the street and is in an area with many interesting cafes and music venues.


Note: The internet address of The Keith Haring Foundation is https://www.haring.com.


We would like to thank the Foundation for permission to reproduce one of Keith Haring works on this website.