Art and trademark law

Andy Warhol created the world-famous artwork of a series of Campbell’s soup cans in 1962. Although this artwork was made without Campbell's permission, the manufacturer did not react negatively. In fact, Warhol was admired for his artwork and sent several cans of soup.

 

This is a positive example of using a brand in art. However, the reality is that such usage usually sparks debate. There is then a clash between the freedom of expression of the artist on the one hand and the trademark right of the trademark owner on the other. It is interesting to examine this field of friction, and consider both the possibility and desirability of allowing artistic freedom to prevail over trademark law. It is not entirely unimportant whether artists have a commercial objective in this regard.

Both the Trademark Directive and case law show that the right to freedom of expression, and thus artistic freedom, can be a valid reason for trademark infringement. Both commercial brand use and non-commercial brand use by third parties can, in principle, be protected on the basis of art. 10 ECHR of the European Convention on Human Rights. The Benelux Court of Justice has ruled that the degree of commercial character is important in the assessment.[1] The protection of commercial expressions is therefore lower than that of non-commercial expressions.

In trademark law, the issue of ‘parody’ deserves attention. A parody is an imitation by means of an adaptation of the original, resulting in a humorous, critical, ironic, or mocking effect. In this way, a sensitive subject can be broached. For this reason, parodies also fall within the scope of the right to freedom of expression and the right to artistic freedom. The purpose of the parody plays an important role in weighing usage rights. The distinction between a parody with an idealistic goal and a parody with a commercial goal is important for the degree of protection. An ideal parody uses a brand to make a statement.