Registering The Night Watch as a trademark: is this possible?

In 2015 Chiever, a law firm specialising in trademark protection, filed The Night Watch as a figurative mark with the Benelux Office for Intellectual Property (BOIP). This had been prompted by a BOIP marketing campaign. Everyone who filed a figurative mark in that period received a painting of it as a gift. The office said that it hoped to receive The Night Watch on canvas, but sadly this didn't work out. The fact is that the BOIP refused to register the painting, because the figurative mark was 'too complex' and also could not be perceived as a mark. Chiever filed an appeal in order to make a point of principle. This was because research had shown that other venerable works of art had been registered as marks, such as Vermeer's Milkmaid for Nestlé's desserts. Also, according to Chiever, everyone is familiar with The Night Watch, so having it function as a mark would not be too complex. The Court of Appeal in The Hague disagreed.

Sadly, the interesting legal question of whether an exceedingly famous work of art, such as The Night Watch, can in fact be registered as a mark remains unanswered. This is because the Court of Appeal held that Chiever had no justified interest in registering The Night Watch as a mark, as the mark had been filed for the element strontium. The filing was evidently a ruse to get hold of a canvas of The Night Watch. The Court of Appeal found that the average consumer would instantly recognise the painting as being by one of the world’s most famous artists, and would therefore not perceive it to be a mark. So what does this mean for Nestlé's Milkmaid brand? And can the ground of refusal based on public policy apply to any similar work of national or international allure? It's a pity that the Court of Appeal didn't really explore this.

And a nice try by Chiever. This needs to be looked at again.

Tamilla Abdul-Aliyeva