Champagne and art, a wonderful combination. But can you portray a bottle of Moët champagne in a work of art? Or can Moët successfully invoke its trademark right to prevent this? The Benelux Court of Justice had to consider this question after Moët had started a lawsuit against the Belgian artist Cédric Peers who makes art with the recognizable Moët champagne bottle.
In contrast to a European trademark, a Benelux trademark registration has an additional ground for protection: on the basis of a trademark you can also act against any use other than as a trademark. This however, must result in free riding on the reputation of the trademark. Moreover, the alleged infringer must not have a valid reason to use a sign. In such cases, the freedom of expression of the artist clashes with the trademark right of the trademark holder. The judge must therefore weigh the interests of both parties. The question in this case is whether freedom of expression can be a valid reason to use the trademark.
Yes, the judge says. Artistic freedom is a valid reason for using a sign that is similar to the trademark if the expression of art is the original result of a creative design process that is not aimed at harming the trademark or proprietor. Interesting decision in the grey area of trademark use!