Communicated on 20 October 2015

THIRD SECTION

Application no. 16632/12 Barna CSIBI against Romania lodged on 9 March 2012

STATEMENT OF FACTS

The applicant, Mr Barna Csibi , is a Romanian and Hungarian national, who was born in 1979 and lives in Miercurea Ciuc .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 12 March 2009 the applicant lodged a request with the Romanian State Office for Inventions and Trademarks (“the SOIM”) to have the individual trademark “ Szekelyfold nem Rom â nia !” ( Szekely Land is not Romania! - P ământul Secuiesc nu este România ! ) registered for a variety of goods and services, including inter alia paper; cartons; printed products; learning, industrial and artist materials; plastic wrapping materials; clothing articles, shoes and hats; advertisement; office and commercial business management.

On 26 March 2009 the SOIM dismissed the applicant ’ s request. It held that the impugned trademark was an expression that breached Article 1 of the Romanian Constitution. Given that the Szekely Land was part of Romania, the trademark breached Constitutional principles. Therefore, it could not be registered as it breached Article 5( i ) of Law no. 84/1998 on trademarks and geographical indications. The applicant challenged the decision.

On 2 July 2009 the SOIM dismissed the applicant ’ s challenge by reiterating the reasons of its decision of 26 March 2009. Moreover, it held that in the Romanian consumer ’ s perception Szekely Land was the territory covered by the counties of Mureş , Harghita and Covasna, as proven by the materials found on Google. The aforementioned counties were territorial entities that were part of Romania. Consequently, the applicant ’ s argument that the notion of Szekely Land was fictitious had to be dismissed, even though Szekely Land was not actually registered as a territorial entity that was part of Romania. To claim that Szekely Land, indirectly the counties of Mureş , Harghita and Covasna, were not part of Romania amounted to an intention to suggest that the aforementioned territorial entities were autonomous territories and could lead to the idea of territorial separation, a fact that was contrary to Article 1 of the Constitution. The applicant challenged the decision before the Trademarks Re-examination Commission attached to the SOIM.

On 19 February 2010 the Trademarks Re-examination Commission dismissed the applicant ’ s challenge. It held, inter alia , that the name “ Szekely Land” could not be considered fictitious because to the Romanian consumer, regardless of his ethnicity, the historical and ethnographical name of Szekely Land concerned the counties of Mureş , Harghita and Covasna, which was inhabited by Romanians and Szekely ( secui ) and which shared a border with Bârsa Land, the former historical and ethnographical name of Braşov county. A semantic examination of the impugned trademark showed that it was contrary to Articles 1 and 30 § 7 of the Romanian Constitution in so far as the latter article concerned incitement to territorial separation. Even though the impugned trademark was in Hungarian, given the historical considerations, it was understood by all the Romanian consumers who would not have considered it fictitious or imaginative.

The applicant appealed against the decision before the domestic courts. He argued that the Romanian Constitution guaranteed the freedom to express opinions and therefore he was free to make the impugned statement. The notion of “ Szekelyfold ” was imaginative and fictitious and his right to express an opinion in the field of fiction was protected by the Constitution.

On 14 October 2010 the Bucharest County Court dismissed the applicant ’ s appeal. It held that semantically the impugned trademark breached Article 1 of the Constitution. Moreover, the applicant ’ s freedom of expression was not absolute and could be exercised within certain limits that would not incite to territorial separation. Furthermore, the applicant ’ s statement that Szekelyfold was a fictitious name could not be accepted because in the Romanian consumer ’ s perception irrespective of his ethnic origin, historically and ethnographically, Szekely Land represented a territory from the centre of the country, namely the counties of Mureş , Harghita and Covasna. Given the historical considerations, it was clear that even though the impugned trademark was written in Hungarian, that all Romanian citizens could not have perceived or considered this expression to be a fictitious or imaginative notion.

The applicant appealed on points of law ( recurs ) against the judgment. He argued that grammatically speaking the impugned statement did not refer to an action. Consequently, it did not incite to territorial separation and therefore his constitutionally guaranteed freedom of expression could not be restricted. Also from a politically-administrative and legal perspective Szekely Land did not exist and its inexistence was publicly affirmed by politicians, including the leader of the largest social-democrat political party in the country without any consequences. Consequently, the aforementioned land could not be identified with Romania which was an entity defined both legally and from a political-administrative perspective. By assessing the statement from a historical and ethnological perspective and by assigning a different name than the one provided for by law to the three existing counties of Romania, the county court acknowledged in fact that it could not carry out an assessment from a legal perspective and therefore it breached the provisions of the Constitution. If the court had examined the first part of the impugned trademark, namely Szekely Land from a historical and ethnographical perspective, it should have had the same approach to the last part of the trademark, namely Romania. Or Szekely Land had existed historically as a political and administrative entity that had been part of the Hungarian Kingdom and therefore was not part of Romania. Also from an ethnographical perspective the impugned territory was occupied mainly by Szekely people and therefore could not be identified with Romania which was mainly inhabited by Romanian and other ethnic groups. Consequently, expressing a historical and an ethnographical reality could not be dismissed on the grounds that it could in our day incite to territorial separation and would also breach the relevant domestic regulation concerning scientific research, and technological development.

By a final judgment of 27 September 2011 the Bucharest Court of Appeal dismissed the applicant ’ s appeal on points of law. It held that the imperative and mobilising nature of the impugned statement was irrelevant when examining whether the applicant ’ s action to register the impugned trademark had an inciting or provocative effect or intention. What was relevant was the fact that by what it expressed it breached the Constitutional provisions which provide for the unitary character of the Romanian State. In this connection, the court considered that the existence of a contradiction to the Constitutional principles could have been established even when the expression in question restricted itself only to express something that denied an essential element of the organisation of the Romanian State and did not urge an action.

Also, the ethnographical concepts or the legal ones concerning territorial organisation were not the only ones relevant in determining the breach of constitutional principles. Given its notoriety in the general perception of the Romanian population, the historical concepts were also relevant. Consequently, the expression Szekely Land, generally known as the territory name including the counties MureÅŸ , Harghita and Covasna, was correctly found by previous judicial decisions as contrary to the Constitutional provisions.

In examining the way the trademark would have been perceived by the consumers a judge could not have restricted himself to legal or ethnological concepts and had to take into account all the elements the consumers would have associate the trademark with. Unlike the land the applicant ’ s trademark was referring to which only had a historical existence, Romania was organised as a state regulated by Constitutional principles. Consequently, it was obvious that by registering a trademark that identified a territory as a country within Romania ’ s borders could not have been accepted as abiding by the principles that defined the essence of the “concept of Romania” ( noțiunii România ) and with public order, as Romania ’ s identity as a state could not have been achieved by ignoring those rules and even less so by taking into account the historical organisation of the Hungarian Kingdom. Also the applicant ’ s submissions concerning the domestic regulation regarding scientific research were irrelevant to the case. A difference of opinion had to be expressed in a constitutional framework; it could regard any other elements including developmental research, but not Romania ’ s state organisation, a country of which the applicant was the citizen of.

B. Relevant domestic law

1. The Romanian Constitution

Article 1 provided that Romania was a national, sovereign and independent state, unitary and indivisible.

Article 30 § 1 and 7 provided 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 are inviolable. The instigation inter alia to territorial separation was prohibited by law.

2. Law no. 84/1998 on trademarks and geographical indications

Article 5( i ) provided that were excluded from protection and could not be registered the trademarks that were contrary to public order or to good morals.

COMPLAINT

The applicant complains under Articles 9 and 10 of the Convention that the domestic authorities have unlawfully restricted on public order grounds the voicing of his strong belief contained in the expression “ Szekelyfold nem România !” as long as his statement concerned a fictitious land which could have been defined only historically and ethnographically and not politically. Moreover, the authorities interfered with his right to express an opinion and to use it in commercial activities.

QUESTIONS TO THE PARTIES

1. Is Article 10 of the Convention applicable to the circumstances of the case? In particular, do the purpose and nature of the applicant ’ s action to register the individual trademark “ Szekelyfold nem România !” amount to commercial speech? Is the applicant involved in commercial activities? If not, does his action amount to a genuine attempt to be involved in commercial activities?

2. Did the denial by the domestic authorities of the applicant ’ s request to register the impugned individual trademark constitute an interference with his rights under Article 10 of the Convention?

If so, was this justified under the second paragraph of Article 10 of the Convention?