Damn Perignon Collection – trademark use in art

Trademarks are sometimes used in works of art. Well-known examples of recent years are: Darfurnica by Nadia Plesner with the Louis Vuitton bag and Banksy’s Dismaland (Disney trademarks). Trademark owners often let this slide, in order to avoid negative publicity. However, can trademark holders entitled to demand a ban? And can the artist invoke freedom of expression? Is the use of a trademark in a work of art a valid reason to infringe the trademark holders’ rights?

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)


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MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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