EUROPEAN COURT OF HUMAN RIGHTS RULES ON STATUS OF TMS UNDER ECHR

The Mercury News reports that the European Court of Human Rights has ruled that trade marks count as property for the purposes of the right to peaceful enjoyment of property (Article 1, Protocol 1, European Convention on Human Rights), but that pending applications for trade marks do not.

In a press release, the court said:

"The Court held that, while it was clear that a trademark amounted to a "possession" within the meaning of Article 1 ... this was not the case until final registration of the application in question…Prior to such registration, applicants did have a hope of acquiring such a "possession", but not a legally-protected legitimate expectation."

The decision comes in the context of the US v Czech Budweiser saga. Anheuser claimed that the Portugeuse decision to allow the Czech company to use the mark under the 1986 treaty between the Czech Republic and Portugal, which protects registered designations of origin infringed the US company’s right to peaceful enjoyment in property of its trade mark.

The IPKat suspected that trade marks counted as property under the ECHR, but he’s glad to see it confirmed. He agrees that applications can’t be considered to be legally protected legitimate expectations, since this would ignore the possibility of applied-for marks being opposed on relative and absolute grounds.