Let me defend Labatt for a moment. The Montreal Gazette should not have published a photo of Luka Magnotta holding a blatantly branded beer bottle—at least not without a little blurring.
As a matter of law, a media outlet—or anyone else—cannot publish a photograph containing a Labatt product or logo without the trademark owner’s permission, and certainly not a photo with a Labatt product being held up by an accused killer whose picture is now recognizable all over the world.
The association and brand impairment is unambiguous when you see the picture. The accused is holding up the beer bottle tilted toward the camera, where the Labatt label is front and centre and unmistakeable. Labatt would be fully within its rights to seek an immediate injunction enjoining further publication of the photo and suing for monetary damages to its brand. I am surprised it has not done so already.
Labatt—and any other company—has the absolute right to protect the unauthorized publication of its trademark brand and image. Beer companies in particular spend millions of dollars in advertising and marketing. A slew of Twitter jokes and a satirical hashtag do not excuse the original impairment. The publication could have been cropped or blurred out without the Labatt product appearing, or another photo could have been used. The fact is the beer, with the bright blue colour and label, made the photo immediately more recognizable and viewed. The Gazette was benefiting from a brand it does not own.