The Birmingham News
Thursday, January 26, 2006
News staff writer
Don Stewart's life as an artist was as tranquil as the classical music that resonates in his downtown Homewood studio.
That all changed Jan. 6 when he opened the mail.
He now is locked in a standoff with Europe's largest automaker over one of his drawings.
A Utah law firm representing Volkswagen of America has demanded Stewart stop using a ballpoint pen drawing that has bugs on the design of a Classic Volkswagen Beetle. A butterfly forms the drawing's hood. A chrysalis hangs in front of the back right wheel. The automaker's attorneys said the drawing infringes on the Beetle's trademark look, or "trade dress."
"Your selection of VWoA's distinctive trademarks and trade dress can only lead to the conclusion that you are attempting to capitalize on and profit from the goodwill and reputation of VWoA," according to the letter, "by misappropriating VWoA's registered trademarks and trade dress in its products."
The letter seeks the number of products sold, gross revenue collected, the period the products were offered for sale, the names and addresses of "non-retail purchasers" of the products and the names and addresses of suppliers of the products.
The manufacturer also demands Stewart turn over any unsold "counterfeit products" for destruction and 25 percent of gross revenue from sales for the past five years. Stewart, who watched the attorney's Jan. 20 deadline pass, said he is protected by his First Amendment rights.
"We don't do things just to upset folks," Stewart said. "Sometimes the humor is a little sideways, but it's at no one's expense.”
Stewart, who has used his Web site to publicize his spat with VW, has received e-mail from around the world including Russia, Spain, Germany, Brazil and Japan. Those he can translate are supportive.
Stewart also has had conversations with Daniel Moore, who was sued in U.S. District Court in Birmingham by the University of Alabama over his paintings of memorable events in Crimson Tide football.
Paul Alan Levy of the Public Citizen Litigation Group in Washington is representing Stewart. "The defense is there's an exception for noncommercial speech," Levy said. "And in any event, the First Amendment."
VW spokesman Tony Fouladpour said the automaker is careful about granting permission to use its VW Bug shape.
"We're just simply trying to protect what we created, what we own, what we as a corporation make money on," Fouladpour said. "It would be irresponsible not to have people go through the process of getting the trademark rights."
The letter came about two months after Stewart rolled out a compilation of 56 drawings: "The Visual Humor of Don Stewart." He distributed about 1,000 of the 2,000 books before Christmas. The "VW Bug" illustration was one of the pictures.
Stewart, who graduated from Vestavia Hills High School in 1977 and Birmingham-Southern College in 1981, earned his medical degree from UAB in 1985. He subsequently walked out of the Mayo Clinic and a possible surgical career for the drawing life.
Stewart uses his pen to make pun-filled drawings that he sells as individual prints such as "Fast Food," which is a motorcycle composed of images such as a waffle for the front wheel and a hoagie for the seat. He also has a marketing business that includes areas such as corporate design and Web design.
"Frankly, we invested just about every dime we had into the publishing and distribution and marketing of it," Stewart said. "To come in Jan. 6 and find out we couldn't sell it anymore, that was a hard blow to take."
He figures 25 percent of the gross sales of the drawing, in the book and as individual prints, is about $600.
"To say to me that selling these pictures is taking money out of the pockets of Volkswagen is silly," Stewart said. "I don't sell cars. I sell silly pictures, that's what I do."
On the Net www.dsart.com.