No end in sight for 'Lady in Blue' saga

Russian Federation

In a saga which has been running since 2010, it is still not known whether a Russian fashion designer - Ms Yots - is free to use an image based upon Thomas Gainsborough’s famous “Lady in Blue” painting (pictured below*) in connection with her business.

Ms Yots has been using the image in question as a logo for her business since 2005. At that time, an independent contractor produced an image for her in monochrome based on the “Lady in Blue” painting. 

In 2008 Ms Yots tried to register the image as a trademark before the Russian Patent and Trademark Office (Rospatent). Her application was rejected based on Article 1483 of the Civil Code, which prohibits the registration of trademarks confusingly similar to objects of cultural patrimony. However, Ms Yots continued to use the image in her activities (eg, as a decoration in her shop and during runway shows).

The original “Lady in Blue” belongs to the state and is housed at the State Hermitage Museum in St Petersburg. In 2010 the Hermitage Museum claimed rights in the painting and sued Ms Yots for its illegal use. The Hermitage Museum referred to Article 53 of the Law on the Fundamentals of Legislation of the Russian Federation on Culture. According to this article, any use of objects of art and cultural patrimony for commercial and/or advertisement purposes shall be subject to authorisation by the organisation that possesses the objects in question. Since the Hermitage Museum gave no authorisation to Ms Yots to use the painting, it considered her actions to be an infringement.

In February 2013 the Arbitration Court of the Stavropol Territory ruled in favour of the Hermitage Museum, and ordered Ms Yots to stop using her image based upon the “Lady in Blue”. In May 2013 the Sixteenth Arbitration Court of Appeals upheld this ruling.

In September 2013 Ms Yot’s cassation appeal finally landed in Russia’s newly established Intellectual Property Court.

This court has now issued the latest ruling in this saga - deciding on September 19 to annul both decisions of the lower courts prohibiting Ms Yots from using the image of the litigious painting - and sent the case back down to the Arbitration Court of the Stavropol Territory for reconsideration. 

Marianna Perfilyeva, Rouse, Moscow

*the image above is used courtesy of the State Hermitage Museum, St Petersburg

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