THIRD SECTION

Application no . 28514/07 Florin FRÄ‚Å¢ILÄ‚ against Romania lodged on 28 May 2007

STATEMENT OF FACTS

The applicant, Mr Florin Fră ţ ilă , is a Romanian national, who was born in 1967 and lives in Bucharest.

A. The circumstances of the case

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

1. The registr ation of the " Pandectele Româ ne " trademark

The applicant applied to the State Office for Trademarks and Patents (OS IM) to register " Pandectele Româ ne " as a trademark. His application was granted on 8 September 2000, when OS IM issued a registration certificate by which it offered protection on the Romanian territory for a period of ten years.

On 19 October 2000, a comme rcial company, " Editura Rosetti S . R . L . ," which had started to publish a law journal named " Pandectele Româ ne ," lodged an application for the registration of the same trade mark. On 25 June 2001, OS IM dismissed its application on the grounds that an identical trademark was already registered for the same category of products and services on the applicant ’ s name. T his decision became final on 19 October 2001, when OS IM dismissed the company ’ s appeal against this decision.

The company did not lodge a complaint for re-examination with the competent court.

Despite the rejection of its application, Editura Rosetti continued to publish and sell the law journal under the same name.

On 3 November 2003, Editura Rosetti lodged another application for the regi stration of the " Pandectele Româ ne " trademark with OS IM . By a final decision of 23 June 2005, OS IM again dismissed the application on the same grounds as before.

2. The court ’ s proceedings for the revocation of the applicant ’ s rights

Editura Rosetti brought proceedings against the applicant seeking the revocation of the applicant ’ s rights conferred by the trademark. It claimed that the owner of the " Pandectele Rom â ne " trademark as registered in the Trademark Regi ster, "Florin Frăţilă Individual Law Office ", was considered neither a natural person nor a legal entity as required by Article 3 letter (g) of Trademark Law. It also claimed that a trademark owner should be a trader and, according to Law 51/1995, an individual law office could not perform commercial activity.

The applicant lodged a counterclaim asking for the dismissal of the civil action. He claimed that he had registered the trademark as a physical person and had merely indicated the form under which he performed his professional activity, namely, an individual law office. In this respect, he maintained that in the Trademark Register there were several law offices registered as owners of trademarks. In support of this allegation he submitted extracts from the Official Bulletin of Industrial Property indicating at least seven other law offices registered as trademark owners by OS IM .

On 17 June 2004 the Bucharest County Court dismissed the action lodged by Editura Rosetti . It noted that in Romania, lawyers could practice their profession in individual law offices, associated law offices, professional civil companies, or limited-liability professional civil companies. The court found th at the owner of the " Pandectele Româ ne " trademark was a physical person, Florin Frăţilă , who added to his application the form under which he exercised his profession, "Florin Frăţilă Individual Law Office". The court further pointed out that mentioning that he was a lawyer could have been relevant for the use of this trademark, taking into account the legal profile of the publication.

Editura Rosetti appealed the judgment.

On 2 December 2004 the Bucharest Court of Appeal dismissed the appeal, upholding the judgment of the first-instance court. It noted inter alia, that, according to Law 51/95, none of the forms under which the lawyers exercised their profession had legal personality. Therefore, an individual law office could not apply for the registration of a trademark. However, in the instant case the o wner of the " Pandectele R omâ ne " trademark, as appeared from the registration certificate, was a physical person. The relevant wording of the court reads as follows:

“The law does not provide for any sanction in case the name of the owner is followed by other mentions. Therefore, the fact that the heading concerning the owner contains besides the name of a physical person (Florin Fr ă ţilă ) the mention (individual law office) could not lead to the invalidation of the registration certificate or the revocation of the trademarks rights on the grounds that the additional mention would transform the physical person owner of the trademark into an inexistent legal entity."

On 10 January 2005, Editura Rosetti lodged an appeal on points of law.

On 28 November 2006, the High Court of Cassation and Justice allowed the appeal on points of law, quashed the previous two decisions and retained the file for a new examination. It allowed the action lodged by Editura Rose tti holding that "Florin Frăţilă Individual Law Office" could not be considered as a physical person or a legal entity and therefore the conditions laid down for the registration of a trademark pursuant to Article 3 letter (g) of the Trademark Law were not met.

B. Relevant domestic law

The relevant provisions of Law 84/1998 on Trademarks and Geographical Indications are the following:

Article 3

“For the purposes of this Law, the following terms and expressions shall have the meanings set out below:

( ... )

(g) Applicant means the natural or legal person in whose name an application for registration of a mark has been filed."

Article 4

“The right to a trademark shall be acquired and protected by registration with the State Office for Inventions and Trademarks”.

Article 6

“Besides the grounds provided in Article 5 paragraph (1), the registration of a trademark shall also be refused or shall be susceptible of being cancelled, as the case may be, for the following relative grounds:

( a ) if it is identical with an earlier trademark, and the goods and services for which registration is applied or the trademark has been registered are identical with the goods and services for which the earli er trademark is protected (... )"

Article 9

“The right to the trademark shall belong to the applicant which was the first to file the trademark application registration under the conditions laid down by the law."

Article 29

“ (1) The registration of a trademark shall take effect on the date of the regular filing of the trademark and shall subsist for a period of 10 years."

Article 45

“ (l) Any concerned person may apply to the Bucharest District Court, at any time during the term of protection of the trademark, for revocation of the rights conferred by the trademark to the owner:

( ... )

(d) if the trademark has been registered by a person not having the capacity require d by Article 3 letter (g)”.

Article 92

“The State Office for Inventions and Trademarks is a specialized body of the central public administration, the sole authority on the territory of Romania which ensures the protection of marks and geographical indi cations in accordance with this Law."

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 of the Convention about the revocation of his rights conferred by the registration of the " Pandectele Româ ne " trademark by a final decision of the H igh Court of Cassat ion and Justice delivered on 28 November 2006.

QUESTION S TO THE PARTIES

Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1?

If so, has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of that provision?