CEDH · CASELAW;CLIN;ENG — 11 janvier 2007

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Portugal [GC] - 73049/01 Judgment 11.1.2007 [GC] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Possessions Setting aside of a trade mark registration: Article   1 of Protocol No. 1 applicable; no violation   Facts : The applicant company produced beer which it marketed under the brand name “Budweiser”. In 1981 it applied to the National Institute for Industrial Property (NIIP) to have the name registered as a trade mark in Portugal. The application was opposed by a Czech company which had registered “Budweiser Bier” as an appellation of origin in 1968 under the terms of the Lisbon Agreement of 1958 for the Protection of Appellations of Origin and their International Registration. In 1995 the applicant company obtained a court order cancelling the registration of the appellation of origin on the grounds that it did not qualify for protection under the Lisbon Agreement. The NIIP then registered its mark. The Czech company challenged that decision in a court of first instance, relying on a bilateral agreement between Portugal and Czechoslovakia that protected registered appellations of origin. The court of first instance found against the Czech company, but its decision was overturned by the court of appeal, which ruled that the applicant company's trade mark registration was invalid. An appeal by the applicant company to the Supreme Court was dismissed in 2001 on the grounds that the appellation of origin was protected by the bilateral agreement. The applicant company's trade mark registration was therefore set aside. In its application to the Court, the applicant company complained that it had been deprived of its trade mark by the application of a bilateral agreement that had come into force after its application to register the mark was filed. Law : Article   1 of Protocol No. 1 – Intellectual property as such enjoyed the protection of Article   1 of Protocol No. 1. Unlike the Chamber, the Grand Chamber considered that an application for the registration of a trade mark also came within that provision, as it gave rise to interests of a proprietary nature. While it was true that registration of the mark only became final if the mark did not infringe legitimate third-party rights, so that, in that sense, the rights attached to an application for registration were conditional, the party wishing to register the mark was nevertheless entitled to expect that the application would be examined under the applicable legislation if it satisfied the relevant substantive and procedural conditions. The applicant company had therefore owned a set of proprietary rights recognised under Portuguese law, even though they could be revoked under certain conditions: Article   1 of Protocol   No . 1 applicable . As to whether the decision to apply the provisions of the bilateral agreement to a prior application for registration of a mark could amount to interference with the peaceful enjoyment of possessions, the Court noted that the applicant company's main complaint was about the manner in which the national courts had interpreted and applied the domestic law. In that connection, it reiterated that its jurisdiction to verify whether domestic law had been correctly interpreted and applied was limited and that it was not its function to take the place of the national courts, but to ensure that the decisions of those courts were not flawed by arbitrariness or otherwise manifestly unreasonable, particularly when, as here, the case turned upon difficult questions of interpretation of domestic law. The applicant company's case was distinguishable from those in which the Court had found retrospective intervention by the legislature as, in the instant case, the question whether the legislation had been retrospectively applied was in itself in issue whereas, in the earlier cases, the retrospective effect of the legislation had been both indisputable and intentional. The only effective registration in existence when the bilateral agreement came into force was of the appellations of origin registered in the Czech company's name and, although that registration was subsequently cancelled, the Court could not examine what consequences cancellation might have on any right of priority attaching to the mark. In the absence of any arbitrariness or manifest unreasonableness, the Court could not call into question the findings of the Supreme Court or its interpretation of the bilateral agreement. Confronted with the conflicting arguments of two private parties concerning the right to use the name, the Supreme Court had reached its decision on the basis of the material it considered relevant and sufficient for the resolution of the dispute, after hearing representations from the interested parties. Accordingly, the Supreme Court's judgment did not constitute interference with the applicant company's right to the peaceful enjoyment of its possessions. Conclusion : no violation (fifteen votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes