Druet vs Cattelan updates – Ballon d’Or case

DRUET - CATTELAN

Last May, the sculptor Daniel Druet sued the conceptual artist Maurizio Cattelan, requesting to be credited as the author of the creations. This claim could have jeopardised the world of contemporary art, in the sense that Druet claimed the authorship of 9 sculptures that were commissioned to him by the conceptual artist Cattelan from 1999 to 2006. 

Cattelan’s defence argued that the work was conceived by the Italian artist, and that the fabrication came in a second stage. On top of that, according to Cattelan, it was relatively common for conceptual artists to commission the fabrication of their sculptures to other artisans, like Druet, but the latter were limited to follow the artist’s instructions, and not to perform a creative work.  

Early this week, the Paris Court in charge of the case, issued a decision stating that Druet could not be recognised as the author of the sculptures. The Court considered that Druet could be considered as a subcontractor (known in the U.S. as work for hire), in the sense that he was commissioned by the author of the artistic work (Cattelan) to perform it, but he did not conceive the idea.  

Druet has now the possibility to lodge an appeal against this decision, so it is likely that this decision will not be the final one. 

BALLON D’OR 

In 2004, the applicant Les Éditions P. Amaury registered the word mark “BALLON D’OR” as a European Union Trade Mark (EUTM) for goods and services in Classes 14, 16, 28 and 41, which included among others “printed matter, books and magazines, as well as services consisting in the organisation of sports competitions and awarding of trophies, entertainment, the broadcasting or production of television programmes, the production of shows or films and the publication of books, magazines or newspapers”. For the record, Ballon d’Or is the award given by the French news magazine France Football to the best football player of the year.  

In 2017, the UK-based company Golden Balls, filed an application for revocation of the above mentioned EUTM, before the Cancellation Division of the EUIPO, alleging the lack of genuine use of the EUTM for the goods and services concerned. 

The decision by which the Cancellation Division revoked the contested EUTM in respect of the goods and services concerned (except for sporting activities, namely organisation of sports competitions and awarding of trophies in Class 41), was lately appealed before the Boards of Appeal (BoA). The BoA partially upheld the appeal as regards “printed matter; books, magazines” in Class 16, but dismissed the it for the remaining goods and services, as the evidences submitted did not prove the use for those g/s. 

Les Éditions P. Amaury lodged an appeal against this decision before the General Court (GC).

From its side, the GC reminded the obligation to use the EUTM for the goods and services concerned in the relevant period of time- i.e., five years before the application for revocation was filed. In fact, the evidences submitted by Les Éditions P. Amaury were not considered by the Court as suitable evidences to demonstrate the use of a trade mark during the relevant period, for the contested services.  

In the second place, the GC stated that Les Éditions P. Amaury did not prove the genuine use of the EUTM in connection with the services of production of television programmes, the production of shows and films, or the publication of books, magazines and newspapers under the contested mark (Class 41), and therefore upheld BoA’s decision of revoking the EUTM for those services. 

In the third place, the GC pointed out that the Ballon d’Or ceremony must be understood as an entertainment ceremony, thus the applicant was able to demonstrate the effective use of the EUTM for services in class 41 (entertainment, television entertainment and organisation of competitions (entertainment). 

As a consequence, the GC annulled the BoA’s decision with regards to the revocation of entertainment services, meaning that the EUTM is still valid for those services.