Trade Mark Registration - Portugal
In the dispute between a US Company, Anheuser-Buch for the registration of trade mark 'Budweoser' and Budejovicky Budvar opposing the registration on the ground that the registration by the Portuguse Patent & Trade Mark Office infringes the provisions of the Agreement, relative to the protection of Indications of Origin, names of origin and other Geographical names, since the word Budweis, also known as Budweiss, is used in Czech city as Budvar and violates the Agreement made between Governments of the Portuguese Republic and the Socialist Republic of Czechoslovakia. The Portuguese Supreme Court of Justice rejected the application of US company on the ground that the trade mark application for Budweiser fell within the scope of the Bilateral Agreement about the protection of Indications of Origin, Appellations of Origin and other Geographical Denominations made between the two governments.
Against the order of the Portuguse Court, the US company filed a petition in the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR), alleging that by enforcing the provisions of the Bilateral Agreement, the Portuguese Supreme Court confiscated or expropriated the trade mark for Budweiser which was filed before the Bilateral Agreement was enacted. The US company further argued that although the trade mark application not yet granted by a final decision, should be considered as an "asset" according to Article 1 of Protocol to the Convention. However, in its decision, ECHR held that the trade mark Budweiser is well known worldwide and has a certain economic value. For this reason the court added that a trade mark can be qualified as an "asset" only after the registration is granted by a final decision according to the rules applicable in the state where the registration was applied for. The court further added that when the Agreement was enacted, the applicant did not yet have any asset and therefore considered that the Portuguse Supreme Court of Justice judgement did not amount to an interference and hence rejected the appeal. The ECHR also concluded that since the Portuguese Supreme Court's judgment did not interference with US company's right to the peaceful enjoyment of its possessions, there is no violation of Article 1 of Protocol to the Convention.
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