17 févr. 2012

UN HRC moves towards annulment of the citizenship requirement for property restitution, Klein, 1847/2008

No doubt, this is the most common kind of property litigations in Eastern Europe. On 08/12/2011 the UN Human Rights Committee found a violation of Article 26 (non-discrimination) of the Covenant of Civil and Political Rights by the Czech Republic, since they had forbade foreign citizens restitution of their property lost during the Soviet era. Miroslav and Eva Klain lost their Czechoslovak citizenship in 1978 due to the naturalisation in the USA. Their Czech property was confiscated but could be restituted on the condition of obtaining the Czech nationality.

The Czech Government argued that citizenship is a "reasonable and objective" criterion (§ 4.4) but the judges replied that it is "arbitrary and discriminatory", because individuals who are equally victims of prior State confiscations find themselves in completely different situations on the mere ground of the passport.

The case is also important, since the Committee has explained (§ 7.6) that the judicial deadline to file a communication is 5 years after the final internal instance, or 3 years after another mechanism of international settlement (where applicable).

11 févr. 2012

ECHR lowers the private life protection standard, von Hannover v Germany (no.2), 40660/08

On 07/02/2012 Her Royal Highness Princess Caroline von Hannover, Hereditary Princess of Monaco, and her husband lost proceedings against paparazzi before the European Court of Human Rights. The issue was raised by publishing photos of the Princess from her private skiing holiday at the resort of St. Moritz.

The most interesting for me in this case is the lowering of the private life standard. If previously the paparazzi would have to prove that the published photos “contribute to a debate of general interest”. This time we see a new wording: “contribute, at least to some degree, to a debate of general interest” (§ 118). Do you see the difference? In practical terms it means that, since the respective German press article suggested that Prince Rainier of Monaco was ill but his daughter Princess Caroline did not care about him enough and went on holidays, it “contributed, at least to some degree, to a debate of general interest”. Thus, according to the ECHR, the photos were not published for the entertainment purposes.

The Princess pointed that she did not exercise any political or official function, and therefore her private life should enjoy protection (§ 85). This was an argument leading to success in her previous case von Hannover (no.1). However this time the judges regarded her and her husband as “public figures” (§ 120).

The Princess argued that such a judgment would make the paparazzi free to abuse the notion of “general interest”, but the judges replied that they do not really care about future possibilities. Basically, let’s think about future in the future – they wrote (§ 119).

From the legal strategy perspective, the paparazzi performed well in mobilizing 5 NGOs for filing their observations (§§ 90, 92-93), which with no doubt had an influence on the judges.

4 févr. 2012

The real sense of VIAGRA, T-332/10

On 25/01/2012 Pfizer Inc. from New York owning trademark VIAGRA won the case against Polish company VIAGUARA SA who tried to register its name as a community trademark for drinks.

The EU General Court held that trademarks VIAGRA and VIAGUARA have "strong similarity" (§ 42). The Polish company argued that there is a huge difference between the pharmaceutical product for stimulation of erection (class 5) and drinks (classes 32 and 33) - they are in different classes, and Pfizer Inc. never tried to move to the class of drinks (§§ 44-45).

The judges replied that the "association" between the trademarks remains "possible", since VIAGRA has a huge recognition that extends the limits of the public interested in pharmaceutical erection (§ 52). Thus the real sense of VIAGRA may cover the class of drinks.