UK: The Artist And The Louis Vuitton Handbag

The story began in 2008 when Nadia Plesner, a Danish artist, created an image showing an emaciated black boy with a chihuahua on one arm and a designer bag on the other. Her message was that our celebrity-obsessed media was failing to address crisis situations such as Darfur. Her work was printed on t-shirts and posters as part of an awareness campaign she called Simple Living.

The designer bag was clearly recognisable as a Louis Vuitton handbag. LVMH filed a lawsuit in the French Courts against the artist, claiming copyright infringement. In May 2008, the French Court ordered the artist to stop displaying and selling the t-shirts and posters.

Earlier this year, LVMH sued Plesner again, this time in the Netherlands, where she resides. She had used the same image of the boy with the chihuahua and the designer bag in a large painting called Darfurnica. The painting is inspired by Picasso's Guernica. It again seeks to draw attention to the situation in Darfur, by contrasting it with the world of celebrities. This time the black boy is part of a bigger canvas and far less visible than on the t-shirt. At the same time, the Simple Living t-shirts and posters were on sale at the gallery showing Darfurnica, and the boy with the handbag was displayed on invitations.

LVMH brought the lawsuit before the Dutch Courts of The Hague, seeking an order for preliminary relief for breach of its intellectual property rights in the design of the handbag. The Dutch Court granted relief as requested by LVMH, by ordering the artist to stop exhibiting Darfurnica and offering it for sale, and to stop displaying the image of the black boy with the handbag on other supports. The Court imposed a fine of €5,000 for every day the artist and her gallery persisted in violating LVMH's intellectual property rights in the handbag.

The artist (who was not heard in the first round before the Dutch Court) brought the dispute back before the Dutch Court, seeking annulment of the prohibition to exhibit and sell Darfurnica and reproduce the disputed image. She relied on the freedom of expression in the European Convention of Human Rights. LVMH invoked the protection of property, also enshrined in the Convention. The Court acknowledged that the dispute concerned fundamental rights; a fair balance should be sought between the general interest and the individual interests of the parties in the dispute.

The Court acknowledged LVMH's proprietary rights in the design of the handbag. However, said the Court, LVMH's action was driven primarily by a concern that the artist's work might damage its reputation. This should be balanced against the artist's freedom of expression, a fundamental right to express her opinion through her art. In this case, noted the Court, the artist did not pursue a commercial purpose but sought to draw attention to the situation in Darfur. There was no evidence that she had suggested that LVMH was involved with the situation in Darfur. She had used the image of the handbag to convey a message, alongside another luxury accessory, a chihuahua dressed in pink. The Court held that the high level of public exposure of Louis Vuitton handbags, combined with their considerable reputation, meant that LVMH must accept critical use, as in the case of the image made by the artist. The Court proceeded to quash the first decision of the Dutch Court and ordered LVMH to pay the artist's costs, This was not a case of passing off; in other words, the artist had not sought to create confusion between the Vuitton brand and her own works. Nor had she sought to enhance the commercial value of her art by its association with the Louis Vuitton brand. She used the Louis Vuitton bag as a symbol, in order to convey a personal message about society. Whilst LVMH's concerns about the image are understandable, it is perhaps inevitable that branded goods which, through the brand owners' relentless marketing efforts, acquire symbolic value will be used by artists for their symbolic value. assessed at c. €15,000.

This was not a case of passing off; in other words, the artist had not sought to create confusion between the Vuitton brand and her own works. Nor had she sought to enhance the commercial value of her art by its association with the Louis Vuitton brand. She used the Louis Vuitton bag as a symbol, in order to convey a personal message about society. Whilst LVMH's concerns about the image are understandable, it is perhaps inevitable that branded goods which, through the brand owners' relentless marketing efforts, acquire symbolic value will be used by artists for their symbolic value.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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