DISSENTING OPINION OF JUDGE LEMMENS

61 . To my regret, I am unable to join the majority in finding that there has been a violation of Article 1 of Protocol No. 1. In my opinion, the application should have been declared incompatible ratione materiae with the Convention and its protocols.

2. The case concerns proceedings initially brought before the Turkish courts by Kamoy Araştırma on 22 October 2002 against the use of the name “ Vatan ” by Bağımsız Gazetecilik for a newspaper that the latter had started to publish on 4 September 2002. This claim was based on the claimant company ’ s registered trademark “ Özlenen Gazete Vatan ” (see paragraph 9 of the judgment). In the course of the proceedings, that trademark was transferred to the applicant company, which became a party to the proceedings (see paragraph 10 of the judgment).

The claim was dismissed by the Istanbul Intellectual Property Court (on 27 January 2004; see paragraph 12 of the judgment), and that decision was upheld by the Court of Cassation (on 6 May 2005; see paragraph 16 of the judgment). The only ground retained by the Court of Cassation to justify the dismissal was section 31(2) of Law no. 5000 of 6 November 2003 on the Establishment and Duties of the Turkish Patent Institute, which shielded publishers of periodicals from trademark claims.

3. Parallel to these proceedings, there were also proceedings brought on 2 April 2004, five years after Kamoy Araştırma had stopped publishing a newspaper under the name “ Özlenen Gazete Vatan ”, by Bağımsız Gazetecilik against the applicant company. In these proceedings, Bağımsız Gazetecilik requested the annulment of the applicant company ’ s registered trademark (see paragraph 22 of the judgment).

On 17 February 2005, the Ankara Intellectual Property Court upheld the claim and declared the registration of the applicant company ’ s trademark “ Özlenen Gazete Vatan ” void, on two grounds: the name “ Vatan ” was already well-known before the name “ Özlenen Gazete Vatan ” was registered, and the trademark “ Özlenen Gazete Vatan ” was not used for five years since its registration (Article 14 of Legislative Decree no. 556 of 24 June 1995 on the Protection of Trademarks) (see paragraph 23 of the judgment). As a consequence, the court annulled the registration of the trademark “ Özlenen Gazete Vatan ”.

For reasons unknown, in its above-mentioned judgment of 6 May 2005 in the first proceedings, the Court of Cassation failed to mention this decision.

On 12 June 2006, after the applicant company had filed its application with the European Court, the Court of Cassation dismissed the applicant company ’ s appeal against the above-mentioned decision of the Ankara Intellectual Property Court (see paragraph 23 of the judgment).

On 9 November 2006, following the Court of Cassation ’ s judgment of 12 June 2006, the applicant company ’ s trademark “ Özlenen Gazete Vatan ” was removed from the register of trademarks (see paragraph 25 of the judgment).

4. The first question to be answered in this case is whether the applicant company had a “possession” within the meaning of Article 1 of Protocol No. 1.

The majority consider that this is indeed the case, taking into account that “the applicant company was the owner of a registered trademark which had been recognised by the domestic authorities” (see paragraph 37 of the judgment). They continue to hold that “there was no dispute in the present case as to whether (the applicant company) could claim protection of its intellectual property rights” (ibid.).

I respectfully disagree with this assessment of the facts.

5. To begin with, the majority disregard the fact that the applicant company ’ s registered trademark has been declared void by the Ankara Intellectual Property Court, which judgment has been confirmed by the Court of Cassation and followed by the effective removal of that trademark from the Patent Institute ’ s register.

The decision of the Ankara Intellectual Property Court was not based on section 31(2) of Law no. 5000, and therefore is not exposed to the criticism made by the majority against that provision in its examination of the merits of the applicant company ’ s complaint (see in particular paragraphs 48-50 of the judgment).

I therefore find it difficult to hold, as the majority do, that the applicant company was the holder of a registered trademark. Yes, that was initially the case. But it was no longer the case after the competent courts held that the trademark registration was null and void.

6. Moreover, as is further acknowledged by the majority (see paragraph 47 of the judgment), the Government explicitly relied on the annulment of the applicant company ’ s registered trademark, in particular on the grounds that it had not been used for five years, to conclude that there had been no “interference” with the applicant company ’ s right to a trademark.

I note in passing that in their observations, the Government referred to Article 44 of Legislative Decree no. 556, relating to the effects of a “declaration of invalidity” of a trademark. Article 44 not only provided that such a declaration had a retrospective effect (see paragraph 7, below), but also that it had an effect “ erga omnes ” (Article 44, third paragraph, of Legislative Decree no. 556). I assume that that rule, or a similar rule, applies also to the annulment of a trademark.

In any event, given the above, I find it difficult to hold, as the majority do, that “there was no dispute” as to whether the applicant company could claim the protection of its trademark rights. In my opinion, the Government clearly argued that it could not.

7. It is true that the majority dismiss the Government ’ s argument on the grounds that “the applicant company ’ s complaint does not concern (the annulment of its trademark) but the restriction of its use of the trademark during (the five-year period between April 1999 and March 2004)” (see paragraph 47 of the judgment).

I confess that I do not see the point. The applicant company complained about the dismissal of its claim relating to the use of the name “ Vatan ” by Bağımsız Gazetecilik , which claim was based on its registered trademark “ Özlenen Gazete Vatan ”. When the Government raised the defence, before this Court, that the latter trademark had subsequently been annulled, it was for the applicant company to argue why that event had no bearing on its application. The applicant company, however, failed to do so, merely reiterating in its reply to the Government ’ s observations that it could not use its trademark because of the use of a similar name by Bağımsız Gazetecilik and that its trademark rights had not been sufficiently protected by the competent authorities.

8. The proceedings before the Court have not clarified whether the annulment of the applicant company ’ s trademark had a retrospective effect or solely a prospective effect. I note, however, that a “declaration of invalidity” would have had a retrospective effect (see Article 44, first paragraph, of Legislative Decree no. 556, quoted in paragraph 26 of the judgment). Even if the annulment of the applicant company ’ s trademark only had a prospective effect, that is from the date of the final decision in the proceedings brought by Bağımsız Gazetecilik (12 June 2006), the annulment would still have to be an element to be taken into account in our assessment of whether the applicant company had a “possession” within the meaning of Article 1 of Protocol No. 1.

On the basis of the judgment of the Ankara Intellectual Property Court of 17 February 2005, it seems to me that one must conclude that the applicant company did not have a right protected under Article 1 of Protocol No. 1. Indeed, according to that judgment, the applicant company did not have a validly registered trademark. It is important to note in this respect that the Ankara court came to that conclusion, not only because the applicant company had not used the trademark since April 1999, but also because the name “ Vatan ” was already well-known as a newspaper before the applicant company applied in November 1998 for registration of its name “ Özlenen Gazete Vatan ”.

9. To conclude, the majority find a violation of Article 1 of Protocol No. 1 on the grounds that there has been an interference with the applicant company ’ s trademark rights. However, since later developments at the domestic level have made clear that the applicant company could not claim any protection whatsoever from a trademark registration which was declared null and void, there is, in my opinion, no basis for holding that a property right existed.

The application should therefore have been declared incompatible ratione materiae with the provisions of the Convention and the Protocols thereto.

[1] . Rectified on 14 May 2019 : the text was “(…) is not indisputable (…)”.