Who pulls the longest end?
It is understandable that an art magazine named HART is not pleased with a museum named H’ART, since they serve the same target group people could be confused. Let’s try to assess the chances of both parties if the conflict escalates. First, let’s take a look at the trademark registry.
Trademark Law
If you want to invoke trademark rights, you must have a trademark registration. According to the Belgian newspaper De Standaard, the Belgian magazine HART registered the trademark name in the Benelux in 2006. However, when searching for the name “HART (Magazine)” in the registry, initially nothing is found. Do the Belgians actually have a registration?
Art
I called the Belgian publisher to clarify. She confirms that there is indeed a registration, which is Benelux registration number R 801861 (see below). This explains why a simple identical check for the trademark “HART” does not yield results. The registration actually consists of the word ‘art’ with the image of an ‘H’ in a circle positioned above to the left. Nevertheless, it can be pronounced as ‘hart’ (Dutch for ‘heart’). This trademark serves as the basis for the opposition against the Hermitage’s new name, H’ART.
Another logo
What stands out is that the registered logo differs significantly from the logo currently used on the cover of the magazine HART in 2023. Has the logo perhaps been changed in the past? The answer to this question is crucial for any potential trademark claim. According to trademark law, a trademark must be used. If a trademark is not used for five consecutive years, the right to the trademark may be subject to cancellation. If the Belgians have not used this registered logo ‘H art’ during the last five years, then this registration has likely lost its validity.
Use in the past
But how do you find out when the magazine last used this logo? There is a handy trick for that: the website archive.org. There you can view the design of websites in the past. Archive.org shows that the HART magazine replaced its old logo with the new design somewhere in late 2019. That is less than 4 years ago, which means that the rights to this old logo are still valid.
Infringement?
Next, the question of infringement arises: is the new trademark H’ART used by the Hermitage confusingly similar to the registered trademark “H art” of the magazine? In my opinion, it is. Although the logos are clearly different, both trademarks consist of the word “hart” (=heart). Therefore, aurally both the trademarks are identical, which can be confusing. Therefore, in my view, the Belgians have a strong case.
Settle or face consequences
While the publisher of the magazine is not willing to comment on the matter, I understand that both parties have met last week. It will likely be a case of settling or facing consequences. If they cannot reach an agreement, the magazine will likely initiate legal proceedings and demand that the Hermitage cease using the name H’ART. The court will then determine whether this indeed constitutes trademark infringement.
Trademark research
While we cannot see behind the scenes, it appears that The Hermitage neglected to conduct thorough legal research regarding the availability of the name HART. Perhaps, due to cost considerations, the museum limited its research to an identical quick scan of the trademark registry? This type of search is quick and not expensive but may not uncover a trademark like “H art.” A more extensive (and more costly) legal investigation would likely have revealed the risky Belgian trademark registration. It seems unlikely that The Hermitage would have chosen the name “H’ART” under those circumstances.
Bas Kist
This article was published (in Dutch) on July 4, 2023, in Adformatie.
