A Danish iconic mascot has been the centre of a dispute in the Danish courts (Artpusher Gallery ApS vs. Coop Danmark A/S, BS-30388/2023-SHR) . The dispute considered whether the use of a registered trade mark by a third-party artist, in an uncharacteristically rebellious light, constituted an infringement of trade mark rights or whether the artistic use could be protected under the principles of freedom of speech and artistic expression.

Background

Irma (which is owned by Coop) is one of the oldest supermarket chains in the world, and is well known for their iconic trade mark protected mascot ‘Irma Girl’. However, boundaries were pushed once an artist known as Love Party, operating as Artpusher and through the Artpusher Gallery, created and sold a wide range of creative products (including oil paintings, bucket hats, posters, canvas prints and mugs!), all featuring the Irma Girl motif presented in a modified fashion. 

Love Party’s ‘eclectic’ style of artwork played on Denmark’s beloved mascot in various ways. He took the motif of Irma Girl who usually appears prim and properly dressed in a long white and blue apron dress donned with a bow, and accompanying yellow basket, and in one instance, added a soundbox, cigarette in mouth and beer can in hand to the motif. The artwork was replicated on a variety of merchandise, promoted on social media, and sold in the Artpusher gallery and online. 

Coop’s IRMA Girl

Love Party’s modifications on Irma Girl

Upon discovering Love Party's modified mascot, the CEO of Irma initially offered him a collaboration opportunity to develop an approved artistic use of the mascot, however these discussions were delayed and ultimately not finalised. Despite the absence of a formal collaboration agreement, Love Party released further products embossed with his latest depictions of the Irma Girl. Following the announcement by Coop that it was closing the Irma retail chain, Love Party released the image below of the mascot holding a spray can bottle, graffitiing the words ‘F*ck Coop’.  The closure of the Irma chain by Coop, the associated resignation of the Irma CEO and Love Party's subsequent marketing and sales of the ‘F*ck Coop’ products appear to have been the catalysts which changed the tone of the parties initial discussions and led Coop to take action.

So where did it all go so wrong?

Under EU trade mark law, there is no express freedom of speech and artistic expression based defence to trade mark infringement. Despite this, the right of freedom of expression (which includes artistic and creative expression) is guaranteed under the European Convention of Human Rights (ECHR) and the EU Charter. As described in our previous blogpost, while there is no specific legislative freedom of expression for trade marks in the UK or EU, a recital to the EU Trade Mark Directive attempts to balance the rights of trade mark proprietors, as well as ensuring respect for freedoms of expression. It provides that:

“Use of a trade mark by third parties for the purpose of artistic expression should be considered as being fair as long as it is at the same time in accordance with honest practices in industrial and commercial matters.”

The court was left to consider whether Love Party and Artpusher’s use of Coop's trade marks amounted to trade mark infringement, or, whether Love Party could seek these protections afforded to free speech and artistic freedom. 

Artpusher and Love Party maintained that their works couldn’t infringe on Coop’s rights as they were “artistic expressions that criticised, parodied, and engaged with societal themes, invoking the protections afforded to free speech and artistic freedom.”  They also argued that their use of the trade marks was non-commercial. 

The court were unpersuaded as they instead considered how well known the Irma Girl trade mark and the “Irma” and “Coop” word marks were, the central role the Irma girl trade mark played in the motif series and that the marks were an integral part of the goods marketed by Love Party. As a consequence the Court granted an injunction to prohibit Artpusher and Love Party from using the disputed motifs of the Irma Girl and ordered the removal of such images from the web, as well as a product recall.

Whilst the court focused heavily on Irma Girl's trade mark protection, Coop also argued that the use of the mascot infringed its copyright. In response to the copyright claim, Love Party argued his depictions of Irma Girl could fall under the copyright parody defence. Under this defence, a parody would be required to to evoke an idea of an existing work while showing visible differences to it, and constitute an expression of humour or mockery. As the court held that Love Party's actions constituted trade mark infringement, it held that there was no reason to go on to consider the copyright claims or the applicability of the copyright parody defence. It is interesting to speculate on how the copyright claim may have been resolved, including whether in considering the copyright parody defence the Court may have distinguished between the differing depictions of Irma Girl. For example, some depictions made by Love Party may have been considered as having stronger freedom of expression justifications. For example, the “F*ck Coop” piece may have had a stronger freedom of expression claim to fall within the parody exception in comparison to other depictions of the Irma girl mascot by Love Party, which may have been considered a homage or imitation rather than a parody.

How usual is this court decision? 

It’s clear that the commercial exploitation of trade marks cannot be justified solely by citing freedom of expression considerations, especially when the infringing acts conflicts with the rights and interests of the trade mark owner. 

Whilst this case suggests that the scope of freedom of artistic expression may be limited under EU trade mark law when that expression incorporates an existing mark as a central motif and is subject to significant systemic commercial exploitation; we still await the Court of Justice of the European Union’s (CJEU) judgement on the IKEA case (C-298/23) which will look at freedom of political expression and its relationship with trade mark law. The IKEA case involves the use of IKEA’s protected trade mark in a parody style campaign by a far-right nationalist Flemish political party, who claimed the defence of ‘due cause’ under EU trade mark law. This judgement may add further clarity over the extent to which trade marks are permitted to be used in non-commercial and expressive ways without infringing trade mark rights.