Expressive genericity revisited: What EU policymakers can learn from Rochelle Dreyfuss

Martin Senftleben explores possibilities for weaving a general bias in favour of artistic expression into the fabric of the EU system of trademark limitations and, in particular, the test of compliance with honest practices in industrial and commercial matters. Following Dreyfuss’ recommendation to develop specific rules when expressive use is at issue, the analysis leads to the insight that use of trademarks should be deemed fair in artistic contexts unless the trademark proprietor manages to overcome the legal presumption of fairness by presenting individualized facts that provide proof of unusually grave trademark harm. More specifically, the trademark owner should demonstrate that, despite the artistic setting, the use explicitly misleads consumers as to the commercial origin of the artwork. In dilution cases, the trademark owner should show that the use deliberately blurs, tarnishes or exploits in an unfair manner the distinctiveness or repute of the trademark.