DARFURNICA: THE FORGOTTEN BATTLE – Part 1
Author – Shubham Borkar
Co- Author – Disha Chauhan
“There can be no peace without development, no development without peace, and no lasting peace or sustainable development without respect for human rights and the rule of law.”
-Former UN Deputy Secretary-General Jan Eliasson
This fast-paced world is gradually making us self-centered. We are so much engrossed in accumulating wealth and possessing material objects that personal goals have completely outweighed collective values and moral duties. I as an Intellectual Property lawyer myself, understand that IP rights are meant to provide exclusivity of exploiting one’s IP and protection of one’s IP should be the foremost concern. However, while protecting one’s exclusive rights like that in a registered design or a trademark, one should be cognizant of the intent/ purpose, the competitiveness of the two marks/ products, chances of confusion, probability of loss, and various other things. But sometimes even the biggest brand owners fail to appreciate the same.
The best example of the above situation is the forgotten case of Nadia Plesner Vs. Louis Vuitton. There could not be a better way to put a light on the height of self-centeredness and lack of empathy, social responsibility in today’s world.
Bravest IP Battle ever Fought
In my career as an IPR practitioner, I haven’t come across a case as bravely fought like this. The year was 2008 and a Dutch artist Nadia Plesner was selling T-shirts involving imagery of a starved/ malnourished Sudanese boy (Darfurian) holding a Chihuahua, and a multi-colored bag. The T-shirts were printed with the above-mentioned imagery to attract the attention of the world towards a relatively unheard “Darfur Genocide”. To give you a brief idea of the gravity of the genocide I am quoting Dr. Eric Reeves, an American professor who has researched the subject. He said, “more than one million children have been killed, raped, wounded, displaced, traumatized, or endured the loss of parents and families”.
Nadia wasn’t selling T-shirts for herself, rather all her profits from the Simple Living T-shirt went to the Nadia Plesner Foundation, a not for profit organization that she started in 2008 for sending medical supplies to Darfur.
Luxury Retail giant Louis Vuitton aka LV felt that the multi-colored bag used in the imagery closely resembled their LV Audra bag and sued Plesner for unauthorized use of their registered design. Plesner in her response specified the reason by quoting “I am devastated on how the media works and why there are such a large number of reports about enormous stars and absolutely no inclusion of a circumstance like that in Darfur. The bag was there as a superficial point of interest. It was only a method for indicating the youngster off as somewhat of a celebrity.” She added that “if you cannot beat them (the celebrities) then join them.”
However, LV went after the artist to stop this unauthorized use ignoring the public interest linked with cause as according to LV there was no good reason with Plesner to associate LV with the goings-on in Darfur, and the artist could have accomplished the same message without using LV’s Audra bag, and without damaging LV’s reputation by associating the luxury brand with the Darfur genocide which they had nothing to do with. LV applied to the Tribunal de Grande Instance in Paris on 25 March 2008. The Paris court forced an (ex parte) injunction and granted damages of 1 Euro with the intimation or threat of a 5,000 Euro fine for every day of non-compliance with the order. The judgment was fundamentally granted based on the Community Registered Design number 000084223-0001. Consequentially, in June 2008, all Louis Vuitton items were removed from Plesner’s website and she stopped selling the t-shirts.
But the story doesn’t end here, Plesner went on and made a painting which had several celebrities along with the same starved/ malnourished Sudanese boy (Darfurian) holding a Chihuahua, and a multi-colored bag.
Hence in 2011, Louis Vuitton sued Plesner again in the District Court of The Hague for the infringement of Vuitton’s registered design and issued an injunction against her gallery stating that the pattern used by Plesner is highly similar to Louis Vuitton’s design and, therefore, produced the same overall impression.
However, after hearing Plesner’s arguments, the District Court of the Hague, by the judgment[1] dated 4 May 2011, lifted the ex parte injunction against Plesner.[2]
The Hon’ble Court stated that the Right of Artistic Freedom of Expression for a greater cause is above LV’s exclusive rights in the community design. It further stated that public would not associate LV with the war but understand that the bag was placed in the painting to draw the attention of the public and was the symbol of luxury when people in the other side of the world don’t even have the food and shelter to lead their life. Placing reliance on Steal and Morris vs. The UK, (McLibel case), the Court held that Owners of well-known brands had to accept critical use to a higher degree than others. “Use as an “eye-catcher” did not make a lawful expression of artistic freedom unlawful”. The Court also declared that artists enjoy “considerable freedom” with regard to artistic license, in which art may “offend, shock or disturb”.
Analysis
It will be justified to say that the bag used in the painting was there as a symbol of luxury, used only as an eyecatcher, and was not intended to associate LV with the war or infringe their design or disparage their brand for monetary or commercial purposes. LV’s actions were uncalled for and they defeat the idea of artistic freedom. Artists through their art not only create something new but also infuse ideologies and make people aware of what is going on in this world.
Not just this, the Doctrine of fair use is one of the most significant parts of Copyright Law which draws a line between an authentic, bonafide fair use of a work from a malafide obtrusive duplicate of the work.
Article 13 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) has Doctrine of Fair use enshrined in it when it states that exclusive rights should not be extended for the cases where the right is not affected in a way that could cause any loss to a brand owner directly, monetary or otherwise and is used for a greater cause.
The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions puts forward that “Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information, and communication, as well as the ability of individuals to have access to diverse cultural expressions, are guaranteed.”
Artistic freedom is the freedom to imagine, create, and convey assorted cultural expressions free from governmental censorship, political obstruction, or the interference of non-state characters.
It incorporates the right of all citizens to access these works and is basic for the prosperity of social orders. Article 29 of UDHR also provides that everyone has the duty towards the community and “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” One of the reasons which increase the significance of IP is that it is beneficial not just for the innovators but for the general public as well. Some of the researchers have recognized ‘intellectual property rights’ as a mechanism of public interest.
Contrasting View
There are always two sides to a coin and while reporting an incident we need to include both the aspects. The majoritarian view is in support of Nadia Plesner while few report that Plesner was targeting LV exclusively. Even After being sued for’ Living Simple’ Tshirt, Plesner continued to infringe LV’s rights when she Presented “Darfuitton” a sculpture at an exhibition which basically was a big handbag with Murakami’s Print on it which was exclusively designed for LV. Hence Plesner’s inclusion of the same starved young African boy, holding a chihuahua and the LV resembling bag in her Painting ‘Darfurnica’ in 2011 was her third time. LV contended that Plesner could have included any other luxury brand’s look-alike bag in her painting but she targeted LV exclusively.
Hence LV contended that this was a pure case of Brand Targeting and trademark infringement. To an extent, their argument holds good that associating a particular Brand with a war not once but thrice can leave the impression on people that LV is somehow connected with the Darfur War. LV included in their argument that Plesner’s initiative was commendable but targeting LV’s brand name was no coincidence but an intended act to attract publicity.
Conclusion
The intention behind writing this article is not to defame LV in any manner, it is only to highlight the growing self-centeredness in the society, where we value our exclusive rights above humanity. It is undeniable that IP is one of the most important assets of a brand owner, but it cannot be prioritized over the public interest, this is not merely an arbitrary thought, the international conventions and agreements on the subject provides it too. Although Plesner managed to emerge out victorious against the retail giant, not all artists are fortunate enough. Brand owners need to be more reasonable in their approach, decisions like when and when not to sue to need to more carefully analyzed and calculated. In this era of internet and trolls, one such bad decision could lead to serious trolling and could fetch negative publicity to the Brands.
