In the world of fashion, two decisions by the Chamber of the Frankfurt am Main Regional Court responsible for trademark law have brought a dispute between the French luxury fashion retailer Hermès and Namilia, a Berlin fashion label, into the spotlight.
Namilia had designed dresses, skirts, tops and bags that were clearly inspired by the distinctive features of the iconic Hermès luxury handbags. These fashion creations were not only presented at Namilia’s SS24 fashion show “In Loving Memory of My Sugar Daddy”, but also shown online and on social networks.
Hermès felt its trademark rights had been violated and demanded in two urgent proceedings before the Frankfurt am Main regional court that Namilia refrain from making these representations. The designers at Namilia, on the other hand, defended themselves by insisting on their freedom of art and freedom of expression. In her opinion, her fashion creations are part of a production that points to female stereotypes, according to which women often have these luxury handbags given to them by “sugar daddies”. Accepting this prejudice – and exploiting it for your own purposes – represents a form of feminism.
Hermès fails with lawsuit
In its two decisions of September 19, the Frankfurt am Main regional court ruled that Hermès could not rely on its European trademark rights in the present case. The judges found that Namilia’s interest in presenting the fashion show predominated.
The chamber explains that Namilia wants to use her creations to point out that women are often reduced to objects by men and used as a “social accessory”. In Namilia’s opinion, women demonstrated their emancipation by taking on exactly this role and in return using men as a “human bank” by giving them luxury handbags. Namilia’s creations are an exaggerated social representation, in which women wear clothing reminiscent of the luxury handbags from Hermès in a “provocative and lascivious manner bordering on kitsch and tastelessness”. The play between “primitive directness” and ultimate luxury goods is an essential part of the performance.
But it was also crucial that the Hermès brand was not denigrated or degraded through the presentation. Rather, it served as a social reference point for luxury goods and was therefore only part of the production.
Freedom of art and expression are very important
The decisions of the Frankfurt Regional Court show that the freedom of art and expression enshrined in the German Basic Law can be given great importance. At times, freedom of art and freedom of expression can also undermine the protection of trademark rights.
The legally binding decisions are therefore made in an area of tension that has not yet been fully examined legally: On the one hand, there are the (legitimate) interests of brand owners in protecting the brands they have built up and made known through massive investments as best as possible. On the other hand, there are the fundamental rights of freedom of art and freedom of expression. As we all know, fashion can be a way to express art, your own opinion, protest or something similar.
The resolutions show that no matter how far the protection of well-known trademarks may normally extend, sometimes there are higher-ranking concerns to which trademark law must be subordinated.
About the author:
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Janina Wortmann is a lawyer and associate partner in the Munich office of the Noerr law firm. She advises companies in all areas of trademark and design law. She also advises on competition and distribution law. One focus is advising companies in the fashion and cosmetics industry. You can reach her at [email protected].