Art Unlimited made a postcard out of “Nightlight” that sold well. Philips had objected greatly and made many attempts to take the postcard off the market. The following correspondence between lawyers covers the, lawful or not, use of cliché.
Mr. M.J.M. van Kaam, Letter to Mr. PR.M. van de Kroft
Philips International B.V. Corporate Patterns and Trademarks Eindhoven
Subject: Philips shield emblem
Dear Mr. van der Kroft,
(...) Regarding the Philips shield emblem, Philips possesses two trademarks registered within the Benelux. (...) The said trademarks both include, among others, class 16 to where the postcards in question belong. On the basis arising from the rights of the above mentioned trademark, which derive from 1938, and on account of the Philips brand’s great worldwide reputation and renown, we are of the opinion that Philips can, within right and reason, oppose your client’s use of the Philips shield emblem.
In this case, we have established that your client, without the permission of Philips, is selling postcards depicting the Philips shield emblem and is thus profiting from the appeal of this brand. Therefore, your client is making use of the Philips shield emblem for promotion of his own merchandise in addition to the sale of this merchandise (...). Furthermore, we must reject your view that, besides for scientific and informative use, artistic use is an additional legitimate use…
On the grounds of the above, we believe that your client must cease the offending use of the Philips shield emblem. Moreover, we trust that you will understand our position. A firm such as Philips should at all times prevent its brands from possible damage to their primary function as distinguishing feature.
Mr. PR.M, van der Kroft, Letter to Mr. M.J.M. van Kaam, 23.10.1987
(...) Of course, my client understands that Philips, in principle, takes action against each use they deem infringement of trademark. The question that divides us is whether this is, concerning this case, justified (...)
I am aware that Philips produces and distributes a multiple of goods within the Benelux. However, I am unaware of Philips manufacturing and distributing printed matter, in particular, postcards. For this reason, I must rely on non-usus in the merchandise concerned. In my opinion, my client is not using the brand to promote her business nor the sales of her own merchandise. (...)
In regards to neutral and non-offensive use of the Philips emblem, I would like to compare the postcard with the use of the image or word Philips within a literary publication, against which action would neither be taken, so long as this occurs in a non-offensive manner.
How interesting this question may be theoretically – and I remain curious of your opinion concerning aforementioned, I consider it wiser to choose a practical solution. From my client, I have understood the edition to be very limited. I will request from her a proposal, which I hope to promptly present to you.
Mr.P.R.M. van de Kroft, letter to Art Unlimited, 23.10.1987
(...) I hope to somewhat stretch the discussion, until your edition has been sold out. Could you give me an indication of how long this might last? After this, we’ll dutifully promise Mr. van Kaam that we won’t print any new editions, on the premise that the artist will be allowed to exhibit the work freely and include it in exhibition catalogues.