COURT OF THE HAGUE, DECISION OF 4 MAY 2011, NADIA PLESNER V. LOUIS VUITTON MALLETIER SA, NO. KG ZA 11-294
The District Court of the Hague annulled the ex parte injunction against the artist Nadia Plesner which had prohibited her to use a depiction of a Louis Vuitton bag in one of her socio-critical illustrations.
In the decision of 27 January 2011, the court had issued an ex-parte order against Nadia Plesner for infringing Louis Vuitton's Community design rights in the "Multicolor Canvas" pattern by using the picture of a Louis Vuitton handbag in her "Campaign for Darfur."1
Click here to see Louis Vuitton's design.
Click here to see Nadia Plesner's "Darfurnica" painting.
Click here to see Nadia Plesner's "Simple Living" illustration.
Nadia Plesner commenced summary proceedings before the Court of the Hague for annulment of the cease and desist order. Plesner argued that she was entitled to use the depiction of the Louis Vuitton bag on the ground of freedom of expression in Article 10 of the European Convention of Human Rights (ECHR). Louis Vuitton invoked the protection of property, including its design rights, under Article 1 of the first Protocol of the ECHR.
After initially disagreeing about whether the court order also included the exhibiting and offering for sale of the painting "Darfurnica", Louis Vuitton indicated in the hearing that they would not request to have the order extended to the painting. Therefore, it only remained in dispute whether the court order relating to the depiction of a black boy with a Louis Vuitton bag and a pink Chihuahua ("Simple Living") should be maintained.
The Court of the Hague said that artists enjoy a considerable protection of their artistic freedom, which also includes art that might "offend, shock or disturb."2 Plesner's use of the Louis Vuitton bag did not serve a mere commercial purpose but could be regarded as a functional and proportional way to get her social-critical message across. In "Simple Living" Plesner did not only depict the Louis Vuitton bag but also another luxury image in the form of a Chihuahua dressed in pink. There was no evidence that Plesner suggested that Louis Vuitton was involved in the situation in Darfur. The fact that Louis Vuitton is a well-known luxury company whose products enjoy a considerable reputation meant that Louis Vuitton must accept critical use more than other right holders.3
The court concluded that the depiction of the Louis Vuitton bag in the "Simple Living" illustration was not unlawful and that Plesner had not infringed Louis Vuitton's rights. The court added: "The decision would not be different if the illustration had been used as an eye-catcher; it is even more justified as, according to Plesner, the work has a central position in her oeuvre, to the extent that it generated additional attention for her "Darfur" themed exhibition."
As a result, the District Court of the Hague annulled the ex parte order with retro-active effect. All incurred penalties were also waived.