Information Note on the Court’s case-law 79

October 2005

Anheuser-Busch Inc. v. Portugal - 73049/01

Judgment 11.10.2005 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Refusal of national jurisdictions to register a commercial brand on the basis of a Treaty which came into force after the registration request had been submitted: no violation

[This case was referred to the Grand Chamber on 15 February 2006]

Facts : The applicant company produces beer and sells it under the brand name “Budweiser” in a number of countries around the world.In 1981 it applied to the Portuguese National Institute for Industrial Property (INPI) to register “Budweiser” as atrade mark. The INPI registered the trade mark in 1995, after the company had obtained a court order revoking the earlier registration of “BudweiserBier” as a designation of origin by a Czech company. However, the Czech company cha llenged that decision and the Lisbon Court of Appeal, on the basis of the “1986 Agreement”, a bilateral treaty between Portugal and Czechoslovakia which came into force in 1987, protecting registered designations of origin, ordered that the registration of the “Budweiser” trade mark by the applicant company be declared invalid. The applicant company appealed unsuccessfully to the Supreme Court.

Law : Article 1 of Protocol No. 1 – Intellectual property undeniably attracted the protection of Article 1 of Proto col No. 1, but 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 legal position of the entity applying for registration of a trad e mark indisputably involved certain economic interests, and the brand awareness of the “Budweiser” name gave it undoubted economic value. The applicant company thus had a pecuniary interest that could enjoy a certain legal protection, but was not sufficie ntly 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 “Budweiser” trade mark until it had been definitively registered in its nam e, since the Czech company had challenged its right to use the trade mark from the time of its application for registration. A trade mark does not amount to a “possession” within the meaning of Article 1 of Protocol No. 1 until its final registration, in a ccordance with the rules in force in the State concerned. The applicant company thus did not have a possession when the Agreement of 1986 entered into force, and the manner in which the Portuguese courts applied the treaty had not interfered with its right s. Accordingly, Article 1 of Protocol No. 1 was inapplicable and could not therefore have been breached.

Conclusion : no violation (five votes to two).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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