The Benelux Court of Justice, which rules, among other things, on Benelux trade mark issues, recently handed down a decision in a case opposing trade mark rights and artistic freedom.
In the case at hand, Cédric Peers, a Belgian artist, had been painting works featuring famous brand logos and trade marks, including those of Dom Pérignon. A number of these paintings showed naked and scantily-dressed women holding Dom Pérignon champagne bottles, while others simply depicted the typical outline of the bottles, its famous label with the three "spikes" included. The artist also sold clothes featuring the outline of the Dom Pérignon bottle.
The holder of the Dom Pérignon trade marks, Moët Hennessy Champagne Services, sued the artist for trade mark infringement before the Brussels Enterprise Court. The Brussels Court thus faced the delicate task of finding a balance between trade mark rights and freedom of expression, which includes artistic freedom.
As far as the sale of clothes was concerned, the Brussels Court ruled, as could be expected, that the use of the Dom Pérignon trade marks constituted use in the course of trade for the purpose of distinguishing goods and services. In other words, the signs were used “as trade marks”. Such use could damage the essential function of the Dom Pérignon trade marks, which is to serve as an indication of origin for the goods and services for which they are registered.
With regard to the paintings, the Brussels Court decided that the use of the trade marks did not serve to indicate the origin of the paintings, but rather constituted use “other than for the purpose of distinguishing goods and services”. Under Benelux trade mark law, such use can be forbidden if it unfairly profits from or damages the reputation of the trade mark, and does so without due cause. The Brussels Court then asked the Benelux Court whether artistic expression can constitute such due cause, which would make the use of the trade marks allowable.
In its decision of 23 September 2019, the Benelux Court answered this question affirmatively. It decided that artistic freedom, which is an aspect of the artist's right to freedom of expression, can constitute "due cause" under Benelux trade mark law. This is the case when the artistic expression is the original result of a creative design process. The artistic expression, however, may not aim to harm the trade mark or the trade mark holder. Specifically, the restrictions on the right to freedom of expression set out in Article 10 §2 of the European Convention on Human Rights also apply here.
The Benelux Court’s judgment rightly implies that artists should be allowed to use trade mark signs in their work, as long as the work of art is the result of a creative design process and there is no intent to harm the trade mark or its owner. The courts will have to look at all the circumstances of the case in order to assess this aspect.
Please contact Karel Janssens for further information about this case and/or for general legal advice relating to intellectual property.
Picture: A work of art by Mr. Peers (source: https://www.cedricgallery.com)