Pink Floyd (1987) Ltd. is the owner of the international word mark (IR mark 0861426) “PINK FLOYD”. The protection of this IR trademark relates primarily to sound carriers (CDs, records, etc.), computer games, books, magazines, postcards, posters, sheet music, clothing, shoes, caps, and some music-related services. The partners and directors of Pink Floyd (1987) Ltd. are David Jon Gilmour and Nick Berkeley Mason, who are artists and musicians of the music group “Pink Floyd”.
Our client has now been sued before the Regional Court of Hamburg for distributing a pillbox with a printed logo “PINK FREUD”. The logo shows Sigmund Freud in pink together with the inscription “PINK FREUD”.
The plaintiff now considers the IR trademark “PINK FLOYD” to be infringed. On the one hand, there is a likelihood of confusion between the two marks. On the other hand, our client would unfairly exploit and detract from the distinctive character or the repute of the IR trademark 0861426 without justifiable cause.
From our point of view, there is no trademark infringement. Firstly, the IR trademark for pillboxes is not protected at all. Secondly, the obvious satire or parody of Sigmund Freud on a pillbox (Sigmund Freud in pink) does not constitute “exploitation” or “detriment” of the IR trademark “PINK FLOYD”. Nor would this have been done “unfairly” and “without justifiable cause”, because satire and parody practically always have real connecting factors to achieve the desired effect. The satire or parody would also not affect the reputation of the music group Pink Floyd at all, because it is rather a satire around Sigmund Freud, his psychoanalysis, the psychedelic color pink, and a pillbox. In this respect, there is also justification via Article 5 (1) GG (freedom of opinion) and Article 5 (3) GG (freedom of art). Of course, art remains an art, even if it is subsequently sold in multiple copies.
We are looking forward to the decision of the Hamburg Regional Court and will report on it in an update.