An interesting case was delivered by the Court of First Instance today, mainly because the Court again referred to the Charter of Fundamental Rights, even though the fate of the Charter is of course uncertain together with that of the Constitution, of which it formed its second part.
In this case, Eurohypo lodged an application under Council Regulation No 40/94 at the Office for Harmonisation in the Internal Market (OHIM), to register the word sign EUROHYPO. OHIM refused the application pursuant to Article 7(1)(b) and (c) and Article 7(2) of that Regulation.
In short, Eurohypo inter alia invoked Article 17(2) of the Charter of fundamental rights of the European Union, which protects the right of intellectual property.
The Court however argued that “the intellectual property right deriving from the Charter is not an absolute right and the grounds for refusal to register laid down in Article 7 of Regulation No 40/94 constitute limits of that right.” (para. 21)
This is somewhat remarkable. Contrary to for instance the European Convention on Human Rights, the rights enshrined in the Charter are mostly articulated as if they are absolute, and so is Article 17(2) (see text below).
See also my article in the Common Market Law Review for more information about the Charter.
Text of Article 17 of the Charter:
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.
2. Intellectual property shall be protected.