CABINET CHAILLOT
PATENTS TRADEMARKS DESIGNS
French Patent & Trademark Attorneys - European Patent Attorneys - Representatives before EUIPO
ISO 9001 CERTIFIED
The company T. creates, manufactures and sells furnishing fabrics. In 2017, it created a blue wall panel. It offered it for sale under the name "Klein in Paradise" as well as 19 references of fabrics and wallpapers identified under the colours "Klein" or "Klein Blue". A quote from the famous painter Yves Klein is also used: "We don't represent infinity, we produce it".
The painter's son, Mr Klein, and two K. companies, which manage the painter's archives and rights, sent a cease and desist letter to the company T. to withdraw these goods from sale, accusing it of infringement of two "Yves Klein" trademarks filed in April 2018, of parasitism and of infringement of the Klein family name, and obtained permission of a French seizure, that allows to obtain proof of infringement by a bailiff.
The two trademarks were obviously registered after the discovery of this use and designate in class 27 "tapestries not of textile material; wallpapers; textile wallpapers; floor coverings; carpets; doormats". Other trademarks had been registered before 2018, but none in class 27.
The seizure operations carried out in October 2018 enabled the bailiff to take photographs of a catalogue proposing, in particular, a blue wall panel named « Klein in Paradise » and presented with a quote attributed to Yves Klein. However, the bailiff indicated that he had not found any other element mentioning the name Klein or the reference to a colour.
The company T. indicated that the catalogue had been published in January 2017, before filing of the trademarks, and that the product had since been renamed 'Bleu du paradis' (blue of paradise), 5 KLEIN AU PARADIS panels were sold in 2017, none in 2018 and the sale of the product had since been stopped.
The Court found that the trademark YVES KLEIN had been infringed by the use of the expression "Klein au paradis" to name a wall panel.
However, as no sales were made after the trademarks were registered, and only a few catalogues were delivered before the offer for sale was withdrawn after the formal notice, the only prejudice came from the depreciation of the YVES KLEIN trademarks by the unauthorised use. The court therefore set the compensation for the damage at €2,500 per trademark.
Parasitism consists, for an economic operator, in placing oneself in the wake of another in order to benefit, without spending anything, from his efforts and know-how, from the notoriety acquired or from the investments made.
The K. companies reproach, as parasitism, the association of the designation KLEIN AU PARADIS with a quotation expressly attributed to the artist Yves Klein, the fact that the wall panel recalls the artistic universe of the artist's pictorial works, the presence of 19 references of fabrics or wallpapers identified under the colour BLEU KLEIN or KLEIN and of 4 blue fabrics identified under a name integrating the terms BLEU KLEIN.
They consider that these elements of connection to the artist, made without any authorisation, allow the company T. to take undue advantage of the artist's reputation and of the investments made by the companies K. to make it known, at no cost.
However, the Court noted that the documents filed did not justify any investment done by the K. companies, as investments appeared to have been done by a third company, and that the creations and quotations criticised were the work of the artist and not of the companies.
In the absence of proof of investment, the Court rejected the claim for parasitism.
The right to a name is essentially attached to the person of his holder and is in principle extinguished with his death. It may also have a patrimonial character which allows its commercial exploitation to be monetised and is transmitted to the heirs. The descendants of a deceased person are thus entitled to protect his memory, reputation and thought.
Thus, the use of the name Klein, without any authorization, to associate it with furniture products that have no connection with the artist's world, to identify a blue that is not the one developed by the artist, infringes the surname.
The company T. was thus ordered to pay Mr Klein's son the sum of €5,000 in compensation.
Court of Appeal of Paris, dated 06/01/2023