order of the court’s reasoning, it seems that they may have reached a different conclusion had the re-worked logo included more humour. Yet even this interpretation falls short, as reliance upon potentially subjective determinations of may result ‘humour’ in arbitrary court decisions, and too restrictive an interpretation of parody. In Esso, Greenpeace used an altered ESSO logo, E$$O (Figure 5) to criticise the trade mark owner’s environmental policy, and inform individuals on the means used by the business to provoke failure of the Kyoto Protocol on climate change. Figure 5 Despite initial summary judgment in the trade mark owner’s favour, this was overturned on appeal, based upon Danone. By denouncing environmental damage, Greenpeace was merely exercising its freedom of expression and this justified their use of the protected mark. The Court acknowledged that freedom of expression was not an absolute right, and set the limit where the defendant’s use harmed other’s rights. Here, the Court held that the particular use made did not create confusion with the company’s own activities: the use of the altered logo located debate outside any commercial activity and, most significantly, the defendant did not use the logo in respect of identical or similar products as the trade mark owner. For this reason, the Court considered that the use in no way denigrated the trade mark owner’s products. Ultimately, the French Supreme Court put an end to at least some uncertainties by confirming the decision from the appeal court. Taking as its starting point the nature of Greenpeace as an organisation, and then analysing the purpose behind its use of the alternated logo, the Court concluded that taken in context, the use of the trade mark constituted a proportionate means to the expression sought. Interestingly, the Supreme Court did not comment upon the relevance of the non-commercial nature of the use. Some deduce from this silence that the controversial character excludes the competitive sphere. Esso can be compared with Areva. In Areva, Greenpeace’s target was the nuclear industry and it picked upon the trade mark AREVA, a French multi-national specialising in nuclear energy, as its exemplar (Figure 6). Figure 6
order of the court’s reasoning, it seems that they may have reached a different conclusion had the re-worked logo included more humour. Yet even this interpretation falls short, as reliance upon potentially subjective determinations of ‘humour’ may result in arbitrary court decisions, and too restrictive an interpretation of parody. In Esso, Greenpeace used an altered ESSO logo, E$$O (Figure 5) to criticise the trade mark owner’s environmental policy, and inform individuals on the means used by the business to provoke failure of the Kyoto Protocol on climate change. Figure 5 Despite initial summary judgment in the trade mark owner’s favour, this was overturned on appeal, based upon Danone. By denouncing environmental damage, Greenpeace was merely exercising its freedom of expression and this justified their use of the protected mark. The Court acknowledged that freedom of expression was not an absolute right, and set the limit where the defendant’s use harmed other’s rights. Here, the Court held that the particular use made did not create confusion with the company’s own activities: the use of the altered logo located debate outside any commercial activity and, most significantly, the defendant did not use the logo in respect of identical or similar products as the trade mark owner. For this reason, the Court considered that the use in no way denigrated the trade mark owner’s products. Ultimately, the French Supreme Court put an end to at least some uncertainties by confirming the decision from the appeal court. Taking as its starting point the nature of Greenpeace as an organisation, and then analysing the purpose behind its use of the alternated logo, the Court concluded that taken in context, the use of the trade mark constituted a proportionate means to the expression sought. Interestingly, the Supreme Court did not comment upon the relevance of the non-commercial nature of the use. Some deduce from this silence that the controversial character excludes the competitive sphere. Esso can be compared with Areva. In Areva, Greenpeace’s target was the nuclear industry and it picked upon the trade mark AREVA, a French multi-national specialising in nuclear energy, as its exemplar (Figure 6). Figure 6