Trademark property and human rights

Abstract

The article reports on some judgments of the European Court of Human Rights applying the principles of the European Convention on Human Rights in respect of trademarks. The first group of cases relates to the freedom of expression (Art 10). In the cases Tokaji, Marlboro and McDonald’s, the applicants referred to this principle to defend their actions related to the trademark. The second kind of cases relate to the protection of property (Protocol No. 1). In the case of Budweiser the European Court took the position in favor of applying this rule to a trademark application. The third group of cases relates to the right to a fair trial (Art. 6). According to reports on the Orient and McDonald’s cases, the national courts committed important procedural faults. The conclusion of the author is that trademark rights can be protected by means of human rights only in exceptional circumstances.