Louis Vuitton vs. Nadja Plesner: Court lifts ex parte injunction against the artist

The IPKat has reported briefly on the latest verdict in the dispute between Louis Vuitton and the artist Nadja Plesner over the incorporation of a Community design-protected pattern owned by Louis Vuitton into a painting inspired by Picasso's Guernica, titled "Darfurnica" (see IPKat post here for a comparison of Darfurnica to Guernica; picture on the right shows the offending detail). I believe the decision by the District Court of the Hague of 4 May 2011 merits a post on its own. As far as the procedural history is concerned, on 28 January 2011, the District Court of the Hague issued an ex parte injunction against Nadja Plesner and her gallery prohibiting the defendants from "further infringement of Vuitton's registered design". It appears the court took particular offense with the fact that the gallery used the detail of the starving kid with the L.V. handbag as a cardboard cut-out and "eye-catcher" at the entrance of the gallery (see image below). After hearing Plesner's arguments, the District Court of the Hague has, with judgment dated 4 May 2011, lifted the ex parte injunction against Plesner (Dutch judgmenent here; English translation courtesy of Kennedy Van der Laan, acting for Plesner, here). The court basically held that Plesner's right of artistic freedom of expression trumped Vuitton's exclusive rights in the Community design (para. 4.8). The average viewer of Darfurnica would not infer that Louis Vuitton was actually involved in the conflict in Darfur, but understand the symbolic nature of the use of the well-known "L.V." pattern, which stands for luxury. Owners of well-known brands had to accept critical use to a higher degree than others (referring to European Court of Human Rights, 15 February 2005, NJ 2006, 39, Steel and Morris vs. UK, para. 94, known as the "McLibel" case). Use as an "eye catcher" did not make a lawful expression of artistic freedom unlawful (para. 4.9). It did, however, certainly generate a lot of publicity for Plesner since Louis Vuitton was provoked into suing, and public opinion largely sided with Plesner. While Plesner states on her website that she is glad "it's over", this Kat assumes that Louis Vuitton could proceed with proceedings on the merits, but may wisely choose not to.

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