THE PRESUMPTION OF INNOCENCE AND THE CASE OF THE DENIAL OF THE EUROPEAN UNION TRADEMARK “PABLO ESCOBAR” FOR BEING CONSIDERED CONTRARY TO PUBLIC POLICY OR TO ACCEPTED PRINCIPLES OF MORALITY
The Charter of Fundamental Rights of the European Union and the Spanish Constitution contain a very relevant principle today, especially at a political level: the fundamental principle of the presumption of innocence. Specifically, the Spanish Constitution establishes that all defendants are presumed innocent until proven guilty and legally declared.
In a recent ruling by the General Court of the European Union, it has been analysed and decided that a person's name cannot be registered, even if they have not been declared guilty by a final judgment, in those cases in which the consumer public could associate said name with criminal activities and, consequently, be contrary to to public policy and to accepted principles of morality.
On April 17, the General Court of the European Union issued a judgment in Case T-255/23 refusing registration of the European Union trade mark No. 18568583 “PABLO ESCOBAR” (word), for various goods and services in classes 3, 5, 9, 10, 12 to 16, 18, 20, 21, 24 to 26 and 28 to 45.
In the aforementioned judgment, the Court indicated that the absolute prohibition of registration of Article 7.1.f of the European Union trade mark Regulation (hereinafter, EUTMR), which prohibits the registration of trade marks contrary to public order or morality, was applicable to the trade mark application in question. In reaching this conclusion, the Court focused on the perception of the sign “PABLO ESCOBAR” which, , would be associated with the figure of the leader of the Medellin cartel and alleged narco-terrorist, as well as the crimes committed by the aforementioned cartel, which were contrary to the ethical and moral principles of the society of all Member States of the European Union. In addition, the public would perceive the trade mark as highly offensive, as an apology for crime and a trivialization of the suffering of thousands of people killed or injured by the Medellin cartel.
In this regard, it should be noted that, as the applicant for the trade mark pointed out at the time, Pablo Escobar was never convicted of the alleged crimes he was accused of, as he died at the hands of the police before he could be tried. In addition, the EUTMR itself, in Recital 21, establishes that said Regulation must be applied in such a way as to guarantee full respect for fundamental rights and freedoms. In this case, and despite the provisions of the previous paragraph and the provisions of Article 48 of the Charter of Fundamental Rights of the European Union on the presumption of innocence, the Court concluded that the trade mark should be refused because it fell within the prohibition of Article 7.1.f EUTMR, even though Pablo Escobar had not been convicted by the courts, since the determining factor for the application of said article was the perception that the relevant public might have of his figure, which would associate the sign “PABLO ESCOBAR” with the name of the leader of the Medellin cartel and a symbol of organised crime that had caused much suffering. This interpretation by the Court opens the door to possible refusals of trade marks consisting of names of people, especially political or public figures, who may be associated by a part of the public with certain criminal behaviour despite the fact that no final conviction has been handed down against them, in those cases in which it can be proven that the public could perceive such actions as contrary to public policy and to accepted principles of morality, taking into account their level of sensitivity and tolerance at the time the trade mark application was made.
