DARFURNICA: THE FORGOTTEN BATTLE (Nadia Plesner Vs. Louis Vuitton) Part-1

“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 exparte 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.

Continued Here https://www.dhirubhai.net/pulse/darfurnica-forgotten-battle-nadia-plesner-vs-louis-vuitton-borkar-1c/?published=t

[1] NADIA PLESNER V. LOUIS VUITTON MALLETIER SA, NO. KG ZA 11-294

[2] Mark Schweizer, https://ipkitten.blogspot.com/2011/05/louis-vuitton-vs-nadja-plesner-court.html, (May 1, 2020, 2.00 Pm)