The Benelux Court of Justice has recently ruled on this question. Moët Hennesy markets the famous Dom Pérignon brand of champagne worldwide. This champagne is sold in a characteristic belly-shaped bottle with a long neck and a shield-shaped label. Cedric Peers produces "contemporary pop-art" style paintings that depict these Dom Pérignon bottles, often combined with scantily clad ladies. These works have (according to the Court) an ironic and sometimes even erotic appeal. Moët Hennesy seeks a ban.
The Court ruled that the use of a brand in a work of art does fall under the artistic freedom/freedom of expression of the artist. So this is a valid reason. But there is a limit to this. A work of art should not be intended to damage the brand or the trademark holder. Let us hope that by this the Court means (as the Advocate General already indicated) that the limit lies with the primary objective of harming the trademark. Experience shows that art sometimes needs to be shocking, offensive and disturbing in order to put a social theme at the center stage. It is up to the judge to ultimately balance those interests. (Source image: cedricgallery.com)