- in United Kingdom
In 2024, the Frida Kahlo Corporation (FKC) filed lawsuits in federal court against a number of online sellers for selling unlicensed products bearing Frida Kahlo's name, likeness, or motifs in violation of trademark rights. These complaints demand that the defendants disgorge all profits or pay statutory damages of up to two million dollars per infringement.
At the same time, descendants and cultural stakeholders have publicly challenged how FKC is exercising its rights. They argue that strict control over Kahlo's image conflicts with both her political values and her place in Mexican cultural memory.
This case is a fascinating intersection of personal beliefs, cultural ownership, and intellectual property law. Below, I explore how this impacts trademark, copyright, and fair use.
Trademark Versus Copyright Versus Public Domain
Trademarks are source identifiers for goods and services: that means names, logos, slogans, and designs that are used in connection with goods or services. However, owning a trademark does not give one unlimited rights over an artist's work itself.
In the Kahlo case, FKC claims rights to her name, her likeness, and stylistic motifs – but not the underlying original paintings.
Copyright, in contrast, protects original creative expression embodied in a work: drawings, paintings, photographs, and other artistic creations. In other words, the actual art that Kahlo made.
Over time, many original works enter the public domain, at which point they may be used freely (subject to moral rights in certain jurisdictions). Even when a painting is in the public domain, though, commercial reproductions, derivative works, or adapted versions may still have protection.
Because of this, it is possible for trademark and copyright regimes to coexist, and careful analysis is required to understand which rights apply in which context.
Why Enforce Trademarks on an Artist's Name or Image?
One might ask: why would a company need to sue people for selling mugs or t-shirts with Frida Kahlo's name, photo, or artistic depiction? The answer lies in the core purpose of trademark law: to prevent consumer confusion and protect the goodwill associated with a brand.
If a seller uses "Frida Kahlo" or a stylized likeness without authorization, consumers might believe that the product is sanctioned or licensed by the rights-holder. That possibility of confusion (or dilution of brand value) gives the trademark owner a basis to act.
In the FKC complaints, the filings allege that many defendants used fictitious storefront names, shared supplier networks, and engaged in online coordination to avoid detection. That pattern of behavior, they argue, supports their claim that the infringements are coordinated and systematic rather than isolated mistakes.
The Role of Fair Use, Free Expression, Homage, and WWFD?
Trademark law does permit some exceptions. Fair use (or nominative use), parody, commentary, or artistic reinterpretation may be lawful when done in a way that does not confuse consumers.
The boundary, however, is subtle. An artisan selling "Frida Kahlo-inspired" prints might argue that the use is expressive, not commercial branding. But if the design is so similar that consumers are misled, a court may find infringement.
Moreover, critics of the FKC approach argue that aggressively policing Kahlo's name restricts cultural expression and undermines her ideological legacy – what I am calling, "What Would Frida Do?"
Some folk artists have previously sued FKC to preserve the right to sell Kahlo-influenced artwork, claiming that the company's broad enforcement tactics chill free expression. These kinds of tensions tend to surface when family members or cultural heirs contest how a historical figure's image is controlled and monetized.
Lessons and Impacts for Other Creators and Consumers
Reminder: trademark registration does not guarantee unlimited control. The owner must use and defend the mark consistently to maintain rights. Many rights fail because owners neglect policing or allow unauthorized uses to proliferate.
That being said, enforcement needs to be strategic because it is resource-intensive. Not every homage or artistic use is infringement. Whether a use is safe depends on likelihood of confusion, the commercial nature of the use, and how distinct the mark is from the prior art.
Moreover, cultural value and legal rights sometimes clash. In cases involving iconic figures, legal control may come into tension with public interest, legacy, and free cultural expression.
And, of course, context and jurisdiction matter. Disputes over image rights or branding may implicate laws in multiple countries, complicating enforcement across borders.
In the Frida Kahlo dispute, we see the tensions between commerce and culture. It is not enough to say that control of an artistic legacy is purely legal or purely moral. Rather, the dispute lies in how IP rights are asserted, how courts interpret them, and how communities respond.
For artists, brands, or consumers curious about where the legal lines lie, this case is a vivid example that intellectual property is not an abstract doctrine, but a field at least partially shaped by values, power, and creativity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
