Mona Lisa wearing Gucci sunglasses? Brands vs. artistic freedom

Can the person in the pool of "Portrait of an Artist" wear Louis Vuitton swimming trunks and can a bottle of Dom Pérignon be placed on the table at Da Vinci's Last Supper? In short: are you allowed to use the trademarks of others in an artistic expression?

The Benelux Court of Justice examined the question of whether artistic freedom provides a so-called 'valid reason' to use another person's trademark. Artist Cédric Peers makes paintings in which the Dom Pérignon trademarks of Moët Hennessy clearly emerge. These paintings have an ironic and sometimes erotic angle. Moët Hennessy does not appreciate the paintings. They damage the reputation of its brands and therefore constitute a trademark infringement. Peers believes he has a valid reason to use the trademarks, namely his artistic freedom (an aspect of the fundamental right to freedom of expression).

The Benelux Court of Appeal gives the artist an opening. The artistic freedom of the artist constitutes a valid reason for the use of a trademark. The artistic expression must not be aimed solely at damaging the trademark or the trademark owner. The national court shall make that assessment having regard to all the circumstances of the case.

Can Peers continue to paint naked women with Dom Pérignon bottles? In other words, are these paintings aimed at damaging Dom Pérignon or Moët Hennessy? The case goes back to the Belgian judge, who has to look at the case again with the judgment of the Benelux Court of Justice in mind.

Mathijs Peijnenburg