CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 11 octobre 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   529 11.10.2005   Press release issued by the Registrar   CHAMBER JUDGMENT ANHEUSER-BUSCH INC. v. PORTUGAL   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Anheuser-Busch Inc. v. Portugal (application no. 73049/01). The Court held by five votes to two that there had been no violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights. (The judgment is available only in French.)   1.     Principal facts   The case concerns an application brought by a company, Anheuser-Busch Inc., which is an American public limited company whose registered office is in St Louis (Missouri, United States). It produces beer and sells it under the brand name “Budweiser” in a number of countries around the world.   Summary of the facts   In 1981 the applicant company applied to the Portuguese National Institute for Industrial Property (INPI) to register “Budweiser” as a trade mark. The INPI did not grant the application immediately because “Budweiser Bier” had already been registered as a designation of origin on behalf of a Czechoslovak company, Budejovicky Budvar. In 1989 the applicant company sought a court order setting aside the registration of that designation, which was granted in 1995, and the INPI subsequently registered the “Budweiser” trade mark.   The Czech company challenged that decision in the Lisbon Court of First Instance, relying on the “1986 Agreement”, a bilateral treaty between Portugal and Czechoslovakia (now applicable in the Czech Republic) which came into force in 1987, protecting registered designations of origin. The Court of First Instance found against it, but the Court of Appeal overturned that decision and ordered the INPI to refuse to register “Budweiser” as a trade mark.   The applicant company appealed to the Supreme Court, which dismissed the appeal in 2001, holding that the designation of origin “Ceskebudejovicky Budvar”, which translated into German as “Budweis” or “Budweiss”, was protected by the 1986 Agreement. The registration of “Budweiser” as a trade mark on behalf of the applicant company was therefore set aside.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 23 July 2001. It was declared admissible on 11 January 2005 after a hearing which was held at the Human Rights Building in Strasbourg.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Antonella Mularoni (San Marinese), Danute Jočienė (Lithuanian), judges , and also Stanley Naismith , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaint   Relying on Article 1 of Protocol No. 1, the applicant company complained that the application of the 1986 Agreement, which had come into force after it had applied for registration of the “Budweiser” trade mark, had infringed its right to the peaceful enjoyment of its possessions. It argued that, under existing international legal instruments, the right to protection of a trade mark was secured from the date on which the application to register it was made and that it had been deprived of that right without receiving any compensation, despite the fact that there had been no public-interest grounds to justify affording protection to a registered designation of origin on the basis of the treaty between Portugal and Czechoslovakia.   Decision of the Court   The Court observed at the outset that intellectual property as such undeniably attracted the protection of Article 1 of Protocol No. 1. The point in issue in the present case was to ascertain precisely when the right to protection of the trade mark became a “possession” within the meaning of that provision.   The Court noted that the legal position of the entity applying for registration of a trade mark indisputably involved certain economic interests, and acknowledged that – being internationally known – the “Budweiser” brand name had certain economic value. Moreover, it was already possible under Portuguese law in 1995 to obtain damages for unlawful or fraudulent use by a third party of a trade mark which the owner had sought to register. Furthermore, the filing of an application for registration conferred a right of priority over applications filed subsequently.   However, although all those factors undeniably gave the applicant company a pecuniary interest that could enjoy a certain legal protection, Anheuser-Busch Inc.’s legal position was not sufficiently strong to amount to a “legitimate expectation” that attracted the protection of Article 1 of Protocol No. 1.   The applicant company could not be sure of being the holder of the trade mark in question until after it had been definitively registered and then only on condition that no objection was raised by a third party in that respect. Thus the applicant company had a conditional right, which was extinguished retrospectively on account of the failure to satisfy the condition, namely not to infringe the rights of a third party. The Court noted in that connection that Portuguese legislation, which provided that objections to registration of a trade mark could be raised within three months of registration, was clear, precise and reasonable.   The applicant company was or should have been aware of the possibility that its request would be rejected by the Portuguese authorities, especially as in 1989, when the court order was sought setting aside the designation of controlled origin filed by the Czech company, the 1986 Agreement had already been in force for two and a half years.   In conclusion, the Court held that, while it was clear that a trade mark amounted to a “possession” within the meaning of Article 1 of Protocol No.   1, this was not the case until final registration of the application in question, in accordance with the rules in force in the State concerned. Prior to such registration, applicants did of course have a hope of acquiring such a “possession”, but not a legally-protected legitimate expectation. In that connection it was irrelevant that the Agreement of 1986, under which registration was rejected, was subsequent to the date on which the application for registration was filed because at the time of its entry into force, on 7 March 1987, the applicant company did not have a “possession”.   Accordingly, the Court held that Article 1 of Protocol No.   1 was inapplicable to the present case and could not therefore have been infringed.   Judges Costa and Cabral Barreto expressed a dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)   Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.