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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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?