News

In the autumn of 2015, the Benelux Office for Intellectual Property (“BOIP”) organized a marketing campaign. During the campaign, anyone depositing a logo with the BOIP would be presented with the logo as a painting on canvas.

In response, the Amsterdam trademark agency Chiever filed Rembrandt van Rhijn’s famous painting The Night Watch, as a device mark for the substance strontium in class 1 (a.o. chemical products for industrial purposes) with the BOIP, hoping to receive The Night Watch on canvas!

The BOIP, however, argued The Night Watch could not be registered as a trademark, because it referred to one of the most famous paintings in the world, recognized as such by (virtually) everybody. For that reason, the public would not perceive it as a distinguishing feature and in addition such a registration would be contrary to the public order. The BOIP refused to register the trademark.

Chiever appealed. Not only hoping to still receive the canvas, but also because it would like to get an answer to the question whether or not works of art can be claimed as a trademark, and, vice versa, whether one can freely use iconic images.

The Court in The Hague, however, ruled that Chiever has no justified interest in the established procedure, because it apparently was meant as a joke in order to obtain an image of The Night Watch on canvas. And additionally, the fact that Chiever with the registration of The Night Watch for one single element, strontium, has opted for an extreme case, also played a role. According to the BOIP, in the strontium market, trademarks are not used, at least not logos or images on (packages of) strontium. On these grounds, Chiever’s request was rejected.

The Court adds, superfluously, that, whatever else, in the Benelux The Night Watch does not have any distinguishing features in and of itself, for the above reasons and the fact that in the Benelux images of The Night Watch already feature as a decoration on a great many different goods.

Yet, this judgment of the Court is somewhat surprising. After all, already in 1993 Vermeer’s Milkmaid was registered as a trademark with the BOIP by Nestlé for various dairy products. In addition, Chiever has in the meantime scored a success with the European trademark office (“EUIPO”). On 2 August 2017, the EUIPO registered The Night Watch as a trademark for strontium.

It is a pity that the Court in The Hague has not given its opinion on the question whether a (well-known) work of art such as The Night Watch can indeed be registered as a trademark and whether rejection on grounds of the public order can be applied to such a well-known artwork.

Anyway, for the time being, it is advisable to register an EU trademark when wanting to deposit a (well-known) artwork as a brand. In so doing, one also enjoys protection in the Benelux.