Are human rights becoming ubiquitous?
Thanks to the IPKat for details of two recent trade marks decisions, one of the CFI, one of the UK Appointed Person considering human rights.
In EUROHYPO, the CFI upheld OHIM's rejection of the CTM application on the ground that it was descriptive and not distinctive. However, in addition to arguments on these grounds, the applicant relied on article 17(2) of the EU Charter which provides only that IP "shall be protected". The apparent lack of limitation on this (as well as the present basis of the EU Charter) was considered, separately, by Professors MacCormick and MacQueen in our collection of papers in the December 2005 issue of SCRIPT-ed.
The CFI considered, without referring to some of the wider issues explored in those papers, that trade mark rights are limited, for example by the provisions of the CTM Regulation. Although I agree with this decision, perhaps on opportunity was lost for fuller exploration of the relationship between trade marks and human rights, and the lack of restriction on article 17(2). On reflection, however, perhaps a straightforward dismissal will have more impact?
Not a lot is going right just now for Sir Alex Ferguson of Manchester United. As well as "that foot", his appeal to the Appointed Person (Geoffrey Hobbs QC) in respect of the Registry decision refusing his trade mark application for ALEX FERGUSON has failed (see IPKat http://ipkitten.blogspot.com/ 3 May for link). The Registry decision, following its Manual, took the view that the use of famous names on posters and the like (but not the rest of the application) was merely descriptive of the subject matter (being "image carriers"), and not distinctive as a trade mark should be.
Sir Alex argued that the decision was in breach of his rights under the ECHR as a trade mark is a possession, in respect of which there are rights to enjoyment under Article 1, Protocol 1; the Registry practice discriminated against the rights of celebrities, as there would not be the same restriction on "ordinary" individuals registering their names (attractive, but I think they have their own problems with such applications); and that the defences in the Trade Marks Harmonisation Directive meant that some use of the name would still be available to third parties.
The arguments were rejected, on the basis that a trade mark application is not a possession within Article 1 Protocol 1 ECHR (at least pending the Budweiser ECtHR appeal); the discrimination arguments were not available without another ECHR right (such as Article 1 Protocol 1) and in any event might not be available in this circumstances; and finally the old favourite that defences shold not be taken into account in assessing registrability.
The Appointed Person wanted to make a reference to the ECJ (not on the human rights points, but the proper circumstances in which "celebrity trade marks" could be registered.) Sir Alex did not wish to pursue this and dropped the relevant parts of the appeal.
However, the human rights aspects of the appeal are being pursued, including the argument that whether a trade mark application is a "possession" is a question for English law, with the Budweiser decision only persuasive. The Appointed Person ordered that a different Appointed Person now consider this question. Could be VERY interesting: should, in these circumstances, an application be a property right to the extent that there is (limited) human rights protection; who is the best, or appropriate, arbiter of this; and, given the limits in Article 1 Protocol 1, would this make any difference?
In EUROHYPO, the CFI upheld OHIM's rejection of the CTM application on the ground that it was descriptive and not distinctive. However, in addition to arguments on these grounds, the applicant relied on article 17(2) of the EU Charter which provides only that IP "shall be protected". The apparent lack of limitation on this (as well as the present basis of the EU Charter) was considered, separately, by Professors MacCormick and MacQueen in our collection of papers in the December 2005 issue of SCRIPT-ed.
The CFI considered, without referring to some of the wider issues explored in those papers, that trade mark rights are limited, for example by the provisions of the CTM Regulation. Although I agree with this decision, perhaps on opportunity was lost for fuller exploration of the relationship between trade marks and human rights, and the lack of restriction on article 17(2). On reflection, however, perhaps a straightforward dismissal will have more impact?
Not a lot is going right just now for Sir Alex Ferguson of Manchester United. As well as "that foot", his appeal to the Appointed Person (Geoffrey Hobbs QC) in respect of the Registry decision refusing his trade mark application for ALEX FERGUSON has failed (see IPKat http://ipkitten.blogspot.com/ 3 May for link). The Registry decision, following its Manual, took the view that the use of famous names on posters and the like (but not the rest of the application) was merely descriptive of the subject matter (being "image carriers"), and not distinctive as a trade mark should be.
Sir Alex argued that the decision was in breach of his rights under the ECHR as a trade mark is a possession, in respect of which there are rights to enjoyment under Article 1, Protocol 1; the Registry practice discriminated against the rights of celebrities, as there would not be the same restriction on "ordinary" individuals registering their names (attractive, but I think they have their own problems with such applications); and that the defences in the Trade Marks Harmonisation Directive meant that some use of the name would still be available to third parties.
The arguments were rejected, on the basis that a trade mark application is not a possession within Article 1 Protocol 1 ECHR (at least pending the Budweiser ECtHR appeal); the discrimination arguments were not available without another ECHR right (such as Article 1 Protocol 1) and in any event might not be available in this circumstances; and finally the old favourite that defences shold not be taken into account in assessing registrability.
The Appointed Person wanted to make a reference to the ECJ (not on the human rights points, but the proper circumstances in which "celebrity trade marks" could be registered.) Sir Alex did not wish to pursue this and dropped the relevant parts of the appeal.
However, the human rights aspects of the appeal are being pursued, including the argument that whether a trade mark application is a "possession" is a question for English law, with the Budweiser decision only persuasive. The Appointed Person ordered that a different Appointed Person now consider this question. Could be VERY interesting: should, in these circumstances, an application be a property right to the extent that there is (limited) human rights protection; who is the best, or appropriate, arbiter of this; and, given the limits in Article 1 Protocol 1, would this make any difference?
posted by Dr Abbe Brown at 10:29 am
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