CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 février 2004

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Ress , President ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mrs   H.S. Greve ,   Mr   A. Kovler ,   Mrs   A. Gyulumyan, judges , and   Mr   V. Berger , Section Registrar , Having regard to the above application introduced on 4 November 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Irina Aleksandrovna Vorsina and Natalya Aleksandrovna Vogralik, are Russian nationals, who were born in 1934 and 1947 and live in Novosibirsk. The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Ancestor’s portrait The applicants are great-granddaughters of Mr Aleksandr Fyodorovich Vorsin, a prominent factory owner, one of the first brewers in the Altay Region. He founded a brewery in Barnaul in 1882. The only surviving portrait of the grandfather was kept in the applicants’ family archives. In 1991 the applicants passed a copy of the portrait to the Altay Museum of local lore for exhibiting. The museum, in its turn, passed it to OAO “Barnaulskiy Pivovarennyy Zavod”, a joint-stock company producing beer. The brewery produced several kinds of beer under the common brand “Vorsinskoye”—a derivative from the grandfather’s name. His portrait, obtained from the museum, was reproduced on beer bottles. The portrait was also extensively used on external advertising boards. One of the boards depicted a beer bottle (with the grandfather’s portrait on it) playing saxophone. 2.     Litigation On an unspecified date the applicants brought an action against the brewery in the Industrialnyy District Court of Barnaul. They asked to remove the grandfather’s name and portrait from the beer advertisements because it interfered with their right to confidentiality of family life. The applicants claimed that they felt uneasy when strangers asked them about their relation to the person depicted on the beer bottles. They also claimed that they anguished at the sight of bottles—with their name and the portrait of a relative on them—littered about. On 26 June 2000, the Industrialnyy District Court dismissed the action having found as follows: “... The label of the ‘Vorsinskoye’ beer has not yet been registered as a trademark. The [brewery] has filed a [relevant] application... The court considers that pursuant to section 7 § 2 of the Law on Trademarks, Service Marks and Geographic Origin of Goods, great-granddaughters, and [the applicants] in particular, cannot be recognised as heirs. In accordance with the Civil Code, two forms of succession exist: intestate and testamentary. [The applicants] did not claim that a last will and testament had existed. In accordance with Article 532 of the Civil Code, the testator’s grandchildren and great-grandchildren become intestate heirs if by the moment of the commencement of succession no parent, who would have otherwise inherited, is alive. A. F. Vorsin died in 1919, at that time his son N. A. Vorsin (1875-1942) ... was alive. Therefore, A. F. Vorsin’s great-granddaughters cannot be considered as his intestate heirs. In these circumstances, the court considers that section 7 § 2 of the Law on Trademarks cannot be applied to the present case even by analogy. In their statement of action [the applicants] claimed that they had made a copy of the portrait of the great-grandfather and had given it to the Altay Museum of local lore. Pursuant to section 35 of the Law on Museum Stock and Museums, items and collections included in the museum stock of Russia and held in Russian museums shall be open for public access. Pursuant to section 36 § 2 of the same Law, the production of graphic and printed merchandise, souvenirs and other replicated material and consumer goods with the use of images of museum items and collections, museum buildings and objects located on museums’ premises, as well as with the use of museums’ titles and insignia is to be carried out with the consent of the museums’ administration. When applying for registration of the trademark [the brewery] did receive the permission of the museum for the reproduction of Mr Vorsin’s portrait in the label of the ‘Vorsinskoye’ beer. The information about the Vorsin family of merchants, their photographs, were published in local lore publications ... and thus made publicly known. The same can be said about the portrait which was exhibited in the museum. The explanatory dictionary by Ozhegov and Shvedov [1] understands ‘secret’ as (1)   something undiscovered, not yet known; (2) something concealed from others, not known to many. The court takes the view that the defendant did not breach [the applicants’] right to the secrecy of their family life. The court draws a similar conclusion in respect of the alleged infringement of the inviolability of [the applicants’] private life. According to the Ozhegov dictionary, ‘inviolable’ means complete, immune from any encroachment. The court considers that the use of Mr Vorsin’s name and portrait in no way encroaches on [the applicants’] private life since this information is known to the general public...” On an unspecified date, the applicants filed an appeal against the judgment. They argued that the lack of registration of the trademark should not have been considered as an obstacle to the application of the Trademark Law. According to the applicants, the Trademark Law provided a regulation of similar situations, and therefore it should have been applied by analogy. The applicants also claimed that the Trademark Law did not specify the notion of “heir” separate from that described in the Civil Code, and that the moment of the commencement of succession had been of little importance since the right infringed—the feeling of kinship—was of a non-pecuniary nature. The applicants maintained also that the fact that they had passed a copy of the portrait to the museum in no way implied their consent to see it on beer bottles. On 30 August 2000, the Altay Regional Court disallowed the appeal on the following grounds: “... Articles 527-561 of the Civil Code permit the conclusion that succession usually extends to the right of property and other property interests which make part of contract, copyright and inventor obligations. At the same time, heirs may also inherit certain non-pecuniary rights ... if the law so stipulates. However, the [trial] court was correct in assuming that [the applicants] could not be considered as heirs. The [appeal court] can neither accept [the applicants’] argument that their family secret, guaranteed and protected by Article 23 of the Constitution, had been disrespected. The [trial] court assessed these arguments and the [appeal court] upholds this view. A.F. Vorsin is a prominent figure, the founder of beer production in the Altay Region, and this well-known fact cannot be regarded as a family secret. [The applicants] and [the brewery] have a dispute in connection with the right of reproduction of the portrait of A.F. Vorsin in [the brewery’s] trademark. The current legislation does not impose such restrictions. The reproduction of the great-grandfather’s portrait in the trademark of OAO   “Barnaulskiy Pivovarennyy Zavod”, which was founded by A.F. Vorsin, does not infringe or prejudice [the applicants’] personal non-pecuniary interests. The information about A.F. Vorsin is not only the family’s asset, but is also part of the public domain as information about a famous businessman of the Altay Region... The fact that the great-grandfather’s portrait existed in one single copy in [the applicants’] possession does not mean that their family secret was breached. [The applicants] by their own initiative passed a copy of the portrait to the Museum of local lore, and [the brewery] obtained, in accordance with [section 35 of the Law on Museums], a permission of the museum to use the portrait...” COMPLAINT The applicants complain under Article 8 of the Convention that by not prohibiting to reproduce their ancestor’s name and portrait on the beer bottles the State has breached their right to respect for their private and family life. THE LAW The applicants complained under Article 8 of the Convention about the reproduction of their ancestor’s name and portrait on the beer bottles. Article 8 reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1.     The parties’ arguments The Government considered that the complaint was manifestly ill-founded. They claimed that there had been no interference in the applicants’ private or family life. The Government argued, with reference to the case of Brüggemann and Scheuten , that where a person brings his private life into contact with public life—and the applicants had passed the portrait to the museum of their own free will—the claim for respect of it is automatically reduced (see Brüggemann and Scheuten v. Germany , no. 6959/75, Commission’s report of 12 July 1977, Decisions and Reports (DR) 10, p.   100). The applicants contested the arguments of the Government. They claimed first that Article 8 not only protects from interference in one’s private and family life, but also guarantees respect for it. Disrespect of private and family life may take various forms. The State had not protected them from the disrespect shown by the brewery. Secondly, the Government’s reference to Brüggemann and Scheuten was misplaced, as the only publicity the applicants had agreed to was the exhibiting of the portrait in the museum. 2.     The Court’s assessment The applicants allege, in essence, that the commercial use of the ancestors’ portrait causes them distress such as to encroach on their Article   8 rights. However, even assuming that Article 8 extends to the interest the protection of which the applicants seek, the Court cannot entertain this complaint for the following reasons. First, the applicants had themselves passed the portrait to the museum of local lore. It may therefore be concluded that they had agreed, in principle, that the portrait may be seen by others. Moreover, the portrait was posted on produce of the brewery once founded by the applicants’ ancestor. In the Court’s opinion, by using the portrait in this manner the brewery meant to revere his memory as a master brewer rather than insult the applicants’ feelings towards him. Nothing suggests that the rather distant ties between the applicants and the relative were thereby distorted. The Court finds that there has been no interference with the applicants’ right to respect to private and family life. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Vincent Berger   Georg Ress   Registrar   President [1] A popular reference of the Russian language.