European Court of Human Rights holds that Budweiser could not invoke protection of Protocol No. 1 in suit against Portugal for rejecting its trade mark application since mark had never become its "possession"
Anheuser-Busch Inc. (applicant) is a Missouri corporation that makes and markets its beer products around the world. In 1981, it applied to register "Budweiser" as a trade mark in Portugal but the Portuguese agency delayed its action because Budejovicky Budvar of the Czech Republic had already registered "Budweiser Bier" as a designation of origin. A bilateral treaty between Portugal and the Czech Republic's predecessor entered into force in 1987 to mutually protect registered designations of origin.
Though applicant fully litigated the validity of Budvar's registration, Portugal's highest court ultimately ruled that the Agreement protected Budvar's designation of origin. In July 2001, the applicant asked the European Court of Human Rights (ECHR) for relief against Portugal. It relied on Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms [312 U.N.T.S. 221, Nov. 4, 1950, as amended]. Article 1 of Protocol No. 1 [313 U.N.T.S. 262, Mar. 20, 1952] provides in part that "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
In a 5 to 2 decision, a Chamber of the ECHR rules in favor of Portugal. The Court sees the controlling issue as precisely when, if at all, the right to protection of the trade mark became applicant's "possession" within the meaning of Article 1.
The Court first points out that applying to register a trade mark clearly does implicate applicant's economic interests in protecting its internationally known brand name. "However, ... 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 [timely] raised by a third party in that respect."
"In conclusion, ... 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. ... Accordingly, ... Article 1 of Protocol No. 1 was inapplicable to the present case and could not therefore have been infringed." [Quotes are from ECHR registrar's summary of French judgment.]
Citation: Anheuser Busch Inc. v. Portugal, appl. no. 73049/01; E.C.H.R. 529 (November 10, 2005). [See Court’s judgment in French on its Internet site: http://www.echr.coe.int.]
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