FOURTH SECTION

DECISION

Application no. 16632/12 Barna CSIBI against Romania

The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:

Faris Vehabović, President, Iulia Antoanella Motoc, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 9 March 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Barna Csibi, is a Romanian and Hungarian national who was born in 1979 and lives in Miercurea Ciuc. He was granted legal aid, and was represented before the Court by Mr O. Kiss, a lawyer practising in Cluj ‑ Napoca.

2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, of the Ministry of Foreign Affairs.

3. Having been informed of the right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), the Hungarian Government did not wish to avail themselves of this right.

A. The circumstances of the case

1. Preliminary remarks

4. The applicant describes himself as an ethnic Szekler. According to the information he had submitted to the Court, 1 665 individuals declared themselves of Szekler ethnicity at the last official census in 2011. According to the information available to the Court, 1 227 600 individuals declared themselves of Hungarian ethnicity on the same occasion.

2. Proceedings brought by the applicant for the registration of a trademark

5 . On 12 March 2009 the applicant lodged a request with the Romanian State Office for Inventions and Trademarks (“the SOIT”) to have the individual trademark “ Székelyf ö ld nem Rom á nia! ” (Szekely Land is not Romania!) registered. The applicant did not submit a copy of this trademark to the Court. It appears from the description given by the domestic authorities (see paragraph 6 below) that the trademark consisted of a square that had the upper half coloured in red and the text “ Székelyföld nem Románia! ” written in white characters; the lower half was coloured in black, with a text written in an unidentified alphabet. The applicant sought registration for a variety of goods and services, including, inter alia, paper; cartons; printed products; learning, industrial and artistic materials; plastic wrapping materials; clothing articles, shoes and hats; advertisement; office and commercial business management.

6 . On 26 March 2009 the SOIT dismissed his request. It held that the impugned trademark was an expression that breached Article 1 of the Constitution, since Szekely Land was part of Romania. Therefore, it could not be registered, as it breached Article 5 § 1 (i) of Law no. 84/1998 on trademarks and geographical indications (“law no. 84/1998”; see paragraph 21 below).

7. The applicant unsuccessfully challenged this decision in administrative proceedings before the SOIT. On 19 February 2010 the Trademarks Re-examination Commission of the SOIT dismissed his challenge, taking the view that the trademark in question was contrary to public order as it incited territorial separation.

8. The applicant appealed against this decision before the domestic courts. He relied on Article 30 of the Romanian Constitution protecting freedom of expression (see paragraph 20 below). He argued that the statement “ Székelyföld nem Románia! ” expressed his personal opinion, and was not an incitement to territorial separation. The expression “ Székelyföld ” was of a fictional nature, and was protected by the Constitution.

9 . On 14 October 2010 the Bucharest County Court (“the County Court”) dismissed the applicant ’ s appeal. It held that the applicant ’ s freedom of expression was not absolute and could only be exercised within limits that would not incite to territorial separation. Furthermore, his statement that “ Székelyföld ” was a fictional notion could not be accepted because, in the perception of the Romanian consumer, Szekely Land represented three counties situated in the centre of Romania. Although the impugned trademark was written in Hungarian, it was clear that Romanian citizens would not have perceived or considered this expression to be of a fictional nature.

10. The applicant appealed on points of law ( recurs ). He relied on his right to freedom of expression.

11 . By a final judgment of 27 September 2011 the Bucharest Court of Appeal (“the Court of Appeal”) dismissed the applicant ’ s appeal on points of law. It held that that the imperative or mobilising nature of the impugned statement was irrelevant, but what was relevant was rather the fact that the statement breached the constitutional provisions that provided for the unitary character of the Romanian State. It confirmed the County Court ’ s findings that Szekely Land was perceived by the public as referring to three counties in Romania, and held that such a notion contravened the Constitution. In this context the Court of Appeal explained that, in order to determine how a trademark would be perceived by the consumers, it took into account all the elements, not only the legal or ethnological ones, that the consumer would generally associate the trademark with. Consequently, it was obvious that the registration of a trademark that identified a territory as a “country” within Romania ’ s border could not be accepted, because it breached the principles that defined the essence of the “concept of Romania” ( noțiunii România ) and public order.

3 . Other information submitted by the Government after the communication of the application

12 . In their submissions before the Court, the Government stated that the applicant was the sole shareholder of the limited liability company, Hunnia ‑ Serv, registered in 2009. The company ’ s activities were limited to the sale of clothing and shoes.

13 . The Government also argued that the applicant was a fervent advocate of the creation of an independent state within Romania ’ s borders called Székelyföld. He had attended several public events where separatist or xenophobic ideas were expressed. In 2007, he founded the “Szekely platoon” in Miercurea-Ciuc, which was part of the “New Hungarian Guard” nationalist movement. On 14 March 2011 he organised a mock trial in Miercurea-Ciuc during which an important Romanian historical figure was convicted of crimes against humanity allegedly committed against ethnic Hungarians and sentenced to death by hanging. On 3 July 2015 he destroyed a Romanian national flag, making a comment supporting Romania ’ s territorial disintegration. On 7 November 2015 he organised the “Szekely National Gathering” in Kepto, Hungary.

14. The Government also referred to various sanctions inflicted on the applicant for discrimination and racist and xenophobic acts.

15. On 15 December 2010 the National Council for Combating Discrimination decided that displaying a banner with the text “ Székelyföld nem Románia ” at a public basketball game while the Romanian national anthem was playing amounted to an act of discrimination based on ethnic grounds. Consequently, it fined the applicant.

16 . On 18 June 2013 the Miercurea Ciuc District Court convicted the applicant of distribution or possession with intent to distribute of xenophobic symbols and sentenced him to a 500 lei (approximately 111 euros) criminal fine. The court also ordered the confiscation of several shirts, stickers, pens and maps belonging to the applicant with various titles and slogans printed on them, including the text “ Székelyföld nem Románia ”. The applicant did not appeal against this judgment.

17 . On 2 October 2015 the Prosecutor ’ s Office attached to the High Court of Cassation and Justice indicted the applicant for promoting fascist, racist and xenophobic ideology and for use of fascist and racist symbols. He was accused, inter alia , of displaying in front of a supermarket a billboard that had a fascist symbol and a message in Hungarian that said “Shame on you! You bought again from the Jews!”. The prosecutor noted that this text was similar to that used in Nazi Germany for the boycott of Jewish companies. The proceedings were pending before the domestic courts when the application was communicated to the Government.

B. Relevant domestic law

1. The Constitution

18. Article 1 provides that Romania is a national, sovereign and independent state, unitary and indivisible.

19. Article 3 §§ 1 and 3 provides that the territory of Romania is inalienable, and that the administrative organisation of the territory is composed of communes ( comune ), towns and counties.

20 . Article 30 § 1 provides that freedom to express thoughts, opinions, beliefs and creations of any kind orally, in writing, through images, sounds or other means of communication to the public, is inviolable. Article 30 § 7 prohibits, inter alia, the instigation of territorial separation.

2. Law no. 84/1998

21 . Article 5 § 1 (i) provides that trademarks that are contrary to public order or to good morals are excluded from protection and cannot be registered.

C. Relevant European Union law and practice

22. Article 7 § 1 (f) of the Council Regulation (EC) No. 207/2009 of 26 February 2009 (“Regulation no. 207/2009”) on the Community trademark provides that trademarks which are contrary to public policy or to accepted principles of morality shall not be registered. Paragraph 2 of this Article provides that paragraph 1 shall apply notwithstanding that the grounds of non ‑ registrability obtain in only part of the community.

23 . In the case of Couture Tech Ltd. v. Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T 232/10, judgment of 20 September 2011, ECLI:EU:T:2011:498, paragraphs 26-34 and 59-62), the General Court examined the refusal of the OHIM to register a Community trademark that consisted of the exact representation of the coat of arms of the former Union of Soviet Socialist Republics. The General Court noted that Regulation no. 207/2009 aimed, inter alia, to prevent registration of a trademark that was contrary to public policy or to accepted principles of morality and that, in order to apply this absolute ground for refusal, it was necessary to take account not only of the circumstances common to all member States of the European Union, but also of the particular circumstances of individual member States which are likely to influence the perception of the relevant public within those States. The General Court further noted that Hungarian legislation specifically banned, under sanction of criminal penalties, certain uses of ‘ symbols of despotism ’ , including the hammer and sickle and the five-point red star, and that the use of the mark applied for would be perceived by a substantial section of the relevant public in Hungary as contrary to public policy or to accepted principles of morality. According to the General Court, the refusal to register the trademark in question was therefore justified.

COMPLAINT

24. The applicant complained under Articles 9 and 10 of the Convention that the domestic authorities had unlawfully restricted on public order grounds his right to express an opinion, more precisely to voice his strong belief contained in the expression “ Székelyföld nem Románia! ”, and to use it in commercial activities.

THE LAW

25. The applicant complained under Articles 9 and 10 of the Convention that the domestic authorities had unlawfully restricted on public order grounds his right to express an opinion and to use it in commercial activities. Since it is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , §§ 114 and 126, 20 March 2018), the Court considers considers that the applicant ’ s complaint should be examined only under Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. The parties ’ submissions

1. The applicant

26 . The applicant contradicted the Government ’ s submissions that he was not interested in the sale of commercially viable products (see paragraphs 29 and 32 below). Merchandise imprinted with the text he had attempted to register could have been a viable commercial product. The applicant described this merchandise as “T-shirts and other souvenirs”, and claimed that there was a significant market for such products, referring to a Facebook group that had the name “ Székelyföld nem Románia ” and comprised 25,000 members. In addition, the merchandise which had been confiscated from him by the authorities following his criminal conviction had been selling very well before it was seized. He claimed that after the seizure of his merchandise he could not continue his economic activity.

27. The applicant asserted that he was advocating the creation of a completely free and independent Szekely State based on the people ’ s right to self-determination, a right recognised by relevant international law, namely the United Nations Charter and the International Covenant on Civil and Political rights, that allowed for the organisation of referendums in order to decide on the political organisation of a territory. He cited academic research that argued that crimes against humanity had been committed against ethnic Hungarians by the Romanian historical figure whose mock trial he had organised (see paragraph 13 above) or a declaration of a former president of Israel that claimed that the nationals of that State had “merchant skills” in support of his public display of a billboard in front of a supermarket (see paragraph 17 above). He further contended that his conviction by the domestic courts for allegedly xenophobic acts was an overreaction and was based on a misinterpretation of the aforementioned concept.

28 . Moreover, the applicant asserted that nothing in the trademark he had attempted to register amounted to incitement to violence or hatred. His actions were neither violent nor discriminatory. The applicant also argued that the Romanian state ’ s policy was contrary to the interests of its national minorities. According to the applicant, several separatist political movements were lawfully registered across Europe and some of them used publicly and on merchandise registered trademarks containing slogans almost identical to the one he had attempted to register.

2. The Government

29 . The Government contended that Article 10 of the Convention was not applicable in the present case. They submitted that even though the applicant was the formal owner of a business, he had failed to demonstrate that there was a real connection between his actions and a commercial activity. In addition, they put forward the argument that the content of the trademark in question did not constitute commercial speech, and that the possession or distribution of products that displayed such speech was prohibited by criminal law.

30. Furthermore, the Government contended that the applicant ’ s request for the registration of a trademark was in fact a disguised hate speech campaign, a form of political speech that undermined democracy and could not claim protection under the Convention. The applicant had conveyed a powerful xenophobic message and his public actions had incited national hatred and anti-Semitism.

31 . The Government argued that any possible interference with the applicant ’ s freedom of expression was lawful, as it was prescribed by Law no. 84/1998 (see paragraph 21 above), an accessible and foreseeable text, and pursued the legitimate aim of protecting Romania ’ s territorial integrity, national security and public order. The latter concept entailed safeguards against xenophobic actions.

32. The Government further alleged that the interference had been “necessary in a democratic society”, and also proportionate. The applicant had not proved any link between the sale of merchandise provided by his company and the impugned trademark which had incited territorial separation. Moreover, the applicant had not alleged any personal or financial repercussions following the dismissal of his request for registration of a trademark, and had failed to prove any damage he could have suffered. On the contrary, even though the alleged trademark had not been protected by national law he had continued his campaign, which had promoted ethnic and national hatred in breach of the criminal law.

33. Given the context of the applicant ’ s message and actions, the Government were of the opinion that the State should be granted a wide margin of appreciation in adopting dissuasive measures in order to protect territorial integrity and violent altercations between individuals from different ethnic backgrounds.

34. Moreover, they argued that the domestic authorities and courts had provided ample reasons for their decisions to dismiss the applicant ’ s request for the registration of the individual trademark. They also relied on the case ‑ law of the General Court (see paragraph 23 above), and pleaded that the domestic authorities and courts had rightly taken into consideration the historical connotation of the expression the applicant sought to register and had assessed the impact it would have had on the average consumer.

35. The applicant ’ s statement that he had been contributing to a debate regarding the political structure of Romania contradicted his previous claim that Szekely Land was a fictional concept. Moreover, he had not engaged in a general debate of public interest regarding a potential review of the Constitution, but had rather denied the territorial structure of Romania, putting the subject in terms that were discriminatory and violent.

36. In their supplementary observations, the Government dismissed as unsubstantiated the applicant ’ s submissions that other European separatist political movements had used registered trademarks containing slogans almost identical to the one he had attempted to register (see paragraph 28 above). They argued that no national or European Union registered trademark of the type mentioned by the applicant could be found on the public database of the European Union Intellectual Property Office or that of the World Intellectual Property Organisation.

B. The Court ’ s assessment

37. The Court does not consider it necessary to determine whether Article 10 of the Convention is applicable to the circumstances of the present case. Indeed, even assuming this provision to be applicable and that the refusal to register the trademark “ Székelyf ö ld nem Rom á nia! ” amounted to an interference with the applicant ’ s right to freedom of expression, the application is in any event inadmissible, for the following reasons.

38. The fundamental principles concerning freedom of expression have been summarised in the case Mouvement raëlien suisse v. Switzerland ([GC] no. 16354/06, § 48, ECHR 2012 (extracts)).

39. The Court also recalls that by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the “necessity” of a “restriction” or “penalty” (see Müller and Others v. Switzerland , 24 May 1988, § 35 in fine , Series A no. 133). In exercising its supervisory function the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Axel Springer AG v. Germany [GC], no. 39954/08, § 86 in fine , 7 February 2012).

40. Finally, the Court reiterates that the States enjoy a certain margin of appreciation when they regulate commercial speech or advertising. In cases such as the present one, where the alleged interference concerns the refusal of registration of a trademark which, in the applicant ’ s own submissions (see paragraph 26 above), was to be used for selling viable products on the market, the Court ’ s task is therefore confined to ascertaining whether the measures taken at national level are justifiable in principle and proportionate (see markt intern Verlag GmbH and Klaus Beermann v. Germany , 20 November 1989, § 33, Series A no. 165, and Casado Coca v. Spain, 24 February 1994, § 50, Series A no. 285-A).

41. Turning to the facts in the instant case, the Court takes note of the Government ’ s arguments that the interference with the applicant ’ s right had been provided for by Law no. 84/1998, and pursued the legitimate aims of protecting Romania ’ s territorial integrity, national security and public order (see paragraph 31 above). The applicant has not put forward any arguments to the contrary. The Court therefore holds that the interference in question was provided for by the law and pursued a legitimate aim. It will then proceed to examine if it was also “necessary in a democratic society”.

42. The Court notes that the applicant ’ s request for the registration of a trademark was dismissed by the domestic courts because the trademark in question was found to be in breach of the Constitutional provisions that provided for the unitary character of the Romanian State and was contrary to public order (see paragraphs 9 and 11 above). The Court will not speculate whether the applicant aimed in reality to use the trademark in question in order to promote his campaign for the creation of a Szekler state. The instant application does not relate to political speech but only refers to the proceedings related to the domestic authorities ’ refusal to register a trademark and these proceedings took place on the basis of Law no. 84/1998 that especially regulated trademarks and geographical indications (see paragraph 21 above). Indeed, the applicant limited his application to these proceedings, and the arguments related to his alleged political activities were only raised by the Government after the communication of his application (paragraphs 13 - 17 above).

43. The Court further notes that the applicant was involved in a commercial activity and had used on several types of products the text for which he had sought registration as a trademark (see paragraphs 12 and 16 above). The object of his complaint is the refusal to register a trademark to be used in a commercial activity; in the present application, the applicant has not claimed that he was subjected to any conviction or to any other type of penalty.

44. The Court finds that the domestic courts carefully reviewed the applicant ’ s case and gave detailed reasons for refusing to register the trademark in question (see paragraphs 9 and 11 above). More particularly, the Court of Appeal found that the registration of a trademark that identified a territory as a “country” within Romania ’ s border could not be accepted, because it breached constitutional principles and public order (see paragraph 11 above). The Court considers that the reasons given by the domestic courts rendered the measure complained of, namely the refusal of registration of the trademark, justifiable in principle. In accordance with the principle of subsidiarity, the Court finds that the domestic judges did not overstep their broad margin of appreciation when they found that public reasons outweighed the applicant ’ s eventual right to freedom of expression (see, mutatis mutandis , Dor v. Romania (dec.), no. 55153/12, § 54, 25 August 2015).

45. In addition, the Court finds that the applicant has not proved that the refusal to register the trademark in question had had any impact on his possible commercial activities (see, mutatis mutandis , Dor , decision cited above, § 55). While he complained that he could not continue his commercial activities, he clearly indicated that this was the result of the seizure of his merchandise following his criminal conviction for distribution or possession with intent to distribute of xenophobic symbols (see paragraphs 16 and 26 above). However, this is not the object of his complaint in his present application.

46. The Court therefore concludes that the refusal of registration was also proportionate in the circumstances of the present case, which disclose no appearance of a violation of Article 10 of the Convention. It follows that the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 June 2019 .

Andrea Tamietti Faris Vehabović Deputy Section Registrar President