Jeffrey O’Brien is a JD candidate at the University of Alberta.
Louis Vuitton may not have expected much of a counterattack when it sought to prevent Danish artist Nadia Plesner’s use of the fashion mogul’s recognizable handbags in her pictures, but the civil court at The Hague has recently ruled in her favour.
This began in 2008 when Plesner made a piece called Simple Living which depicts a malnourished African child holding a Chihuahua and a white Louis Vuitton Audet handbag. Louis Vuitton became incensed when Plesner started selling t-shirts with the image on the front (she donated the proceeds to a Sudanese charity).
A French court eventually ordered Plesner to cease and desist, but the image reappeared in her larger 2010 piece Darfurnica – based on Picasso’s Guernica. When the piece was placed for sale in a Danish gallery, Louis Vuitton sued again.
The Council and the Commission of the European Union have the authority to pass regulations that bind all member states. A plaintiff can file a claim based on an EU regulation in the court of any member state. Louis Vuitton’s claim is based on Article 19(1) of Council Regulation No 6/2002, known as The Regulation on Community Designs, which provides
19(1). A registered Community design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.
Louis Vuitton has registered the Audet design and never gave Plesner permission to use it. Accordingly, the trial court enjoined her from using the image.
On appeal, however, Plesner invoked Article 10 of the European Convention on Human Rights, which allows freedom of expression. Louis Vuitton countered with Protocol 1, Article 1 of the same treaty, which protects personal property. Because one part of a treaty cannot be used to invalidate another, the court had to weigh Plesner’s right to artistic expression against Louis Vuitton’s right to enjoy its own property.
During and after the litigation, Plesner discussed the case on her website. She explained – and the court made a similar finding of fact – that her art is intended to raise awareness of the current situation in Darfur. She feels that it is underrepresented in mainstream media, whereas human fascination with glamorous lifestyles is overrepresented. The handbag is used as a symbol of that glamour. At paragraph 4.9 the court decided that the handbag in Plesner’s work is an “eye-catcher,” and that an eye-catcher is not an expression of pure commercial nature. Since Plesner’s use of Louis Vuitton’s property was not for commercial purposes, she did not violate the company’s right to property, and her work is protected as artistic expression.
Louis Vuitton’s reason for suing was because of potential damage to its reputation. The flaw in the company’s argument is that it failed to show any real damage (see paragraph 4.8).
A recent article in the Financial Times summarized the results of similar cases in the United States. FT’s conclusion seems to be that American law permits social commentary and parody using commercial logos and other trademarked symbols.
In Canada, a similar case would be subject to the Trade-marks Act sections 20 and 22. The Federal Court ruled on those sections in Michelin v CAW. The court’s decision was more favorable to the copyright holder than was The Hague court. The Michelin decision is oft-criticized, however. Daniel Bereskin QC, and even a writer for Heritage Canada, a branch of the federal government, have questioned the ruling’s wisdom and validity. The law in Canada then seems undecided. Nevertheless, our legal system cannot award damages where the plaintiff shows no injury, so I believe that given the same circumstances, our courts would agree with The Hague.