Hermès on a dented can: French court rejects artistic expression defence

[Söğüt Atilla-Aydın]

Home / artistic expression / double identity / france / Hermès / Le Bidon / Söğüt Atilla-Aydın / trade marks / Hermès on a dented can: French court rejects artistic expression defence

Hermès on a dented can: French court rejects artistic expression defence

 Söğüt Atilla-Aydın Thursday, July 23, 2026 - artistic expression, double identity, france, Hermès, Le Bidon, Söğüt Atilla-Aydın, trade marks

Last month, the Tribunal Judiciaire de Paris held that a French company operating as an art gallery had infringed Hermès’s trade marks and engaged in unfair competition by exhibiting and selling products bearing the luxury brand’s marks without authorisation. The Court also ruled that the artistic expression defence rooted in Recitals 21 and 27 of EU Trade Mark Regulation (EUTMR) and EU Trade Mark Directive (EUTMD), respectively, was unavailable to the defendant.

Background

Hermès (claimant) is the proprietor of the word mark ‘HERMÈS’ and the figurative marks below, registered not only for clothing, accessories, cosmetic products, and homeware, but also for numerous other goods and services, including containers in Class 20 and trays in Class 21 of the Nice Classification.

Hermès’s figurative mark

Hermès’s semi-figurative 'H' mark

  

Le Bidon français (defendant) is an art gallery, exhibiting artworks created by various artists. Additionally, it has online stores where those works are offered for sale. Some of those products – or, as argued by the defendant, artworks – bear the trade marks of the claimant, such as the ones illustrated below.

Round Hermès wooden tray

Dented Hermès can

Hermès had not authorised the use of its trade marks on products identical to those for which they are registered, arguing that this constituted trade mark infringement, and, in any case, unfair competition. The defendant countered that its use was purely for purposes of artistic expression, rather than indicating commercial origin, and argued that it complied with ‘honest practices in industrial and commercial matters’.

More specifically, the defendant claimed that (i) using the claimant’s marks on products ‘antithetical’ to the goods normally sold by the luxury fashion brand amounted to parody, (ii) the explicit contradiction between regular Hermès products and Le Bidon’s repurposed objects readily prevented a likelihood of confusion in the minds of the consumers, and, in any case, (iii) the products bearing the claimant’s marks were merely artistic expressions, that should be exempted from trade mark infringement.

Court’s decision

The Court held that this was a double identity scenario under Article L713-2 of the French IP Code (IPC), as identical signs were used on identical goods. Accordingly, without the need to establish a likelihood of confusion, the Court ruled that Le Bidon had infringed Hermès’s trade marks. That said, it evaluated whether the defendant could nevertheless avoid liability.

The Court emphasised that, to benefit from the artistic expression defence, the defendant’s acts must be in accordance with honest commercial practices. Drawing from its earlier case law, the Court stated that the unauthorised use of a trade mark for artistic purposes cannot avoid liability where the use suggests that there exists a link between the artist and the trade mark proprietor, or where the artist takes an unfair advantage of the mark’s distinctiveness or reputation. Besides reproducing Hermès’s marks on the repurposed products, the defendant had used the brand’s name in the titles and descriptions of those products, together with the hashtag ‘#hermes’ on its social media posts while advertising them.

The Court, thus, concluded that the defendant attempted to promote its artworks bearing Hermès’s marks by misleading consumers into associating Le Bidon’s products with Hermès, disqualifying the defendant from relying on the artistic expression defence.

Comment

The Court reasonably held that artistic expression cannot shield unauthorised uses of trade marks that create non-existent commercial links between the proprietors of the relevant trade marks and creators of those expressions.

A Pop Kat, enjoying being reproduced in an artwork!

Reproducing third-party materials for purposes of artistic expression should be allowed to a certain extent in order not to impose unjustified restrictions on artists’ methods of creation and on the formation of certain artistic genres that rely on borrowing and commenting on existing materials. Accordingly, artists should have the freedom to reproduce third-party materials, including trade marks, in their creations [Merpel: Oh, I can name quite a few trade marks appearing in Andy Warhol’s works!]. However, this freedom cannot extend to copying logos and pasting them on items without an evident artistic purpose – such as commentary or criticism of over-consumption of popular culture elements, as in Pop Art works – or with an overriding commercial purpose. 

Similar to reproducing third-party materials, repurposing functional items to give them new meanings and raisons d’être is also a common artistic practice. Yet, in the case at hand, Le Bidon failed to explain how affixing Hermès’s marks on wooden trays or large dented cans transformed their meanings and rendered them artworks, nor did it justify why using those marks was necessary in fulfilling the relevant artistic purposes. In this Kat’s view, the primary reason for the artistic expression defence to fail was the lack of any submissions on these points.

Finally, although the Court did assess whether the use of Hermès’s trade marks on Le Bidon’s products misled consumers into establishing a link between the two undertakings as part of the artistic expression defence, it did not evaluate whether the defendant’s unauthorised use of Hermès’s trade marks was for artistic purposes in the first place. This prevented the Court from providing a discussion – that could have informed future cases – on differentiating use of signs in the course of trade as trade marks from use of signs for artistic purposes and then commercialising the relevant artworks on which those signs appear. As it stands, the judgment leaves unanswered the critical question of whether artistic expressions (in the form of repurposed products) that reproduce trade marks can ever be placed on the market without causing trade mark infringement.



A concluding food for thought: It remains curious how Hermès succeeded on double identity grounds across all contested Le Bidon products. While Hermès produces trays as part of its homeware collection [e.g., here], it is questionable how its registrations cover items like cans or fire extinguishers – which were also among the contested goods in the case at hand – allowing it to secure a double identity win without needing to prove a likelihood of confusion, similarity of cans to trays or fashion products, or reputational damage.

Image credit: ChatGPT

Do you want to reuse the IPKat content? Please refer to our 'Policies' section. If you have any queries or requests for permission, please get in touch with the IPKat team.