Constitutional Court

KI159/20, Applicant: ADOL L.L.C, Constitutional review of Judgment Rev. No. 29/19 of the  Supreme Court of Kosovo, of 1 July 2020

Keywords: individual referral, trademark 

The circumstances of the present case are related to the registration of the trademark “GJERGJ KASTRIOTI SKENDERBEU” by the Applicant at the Industrial Property Agency (IPA). Due to the similarities with some products imported by the “ELKOS” company and the use of the same trademark by the latter, the Applicant filed a lawsuit as well as a request for interim measure with the Basic Court, claiming infringement of the Applicant’s right to trademark. In the court proceedings, the Applicant’s lawsuit was rejected as ungrounded because the Basic Court, the Court of Appeals and the Supreme Court, assessed, among other things, that based on the Law on Trademarks and the Paris Convention for the Protection of Industrial Property, the trademark used from the other company, is a “well-known trademark” and which also contains “state symbols”, which cannot be appropriated by one party and their use be prohibited to other parties.

The Applicant alleged before the Court that the regular courts violated its rights guaranteed by Article 46 [Protection of Property] of the Constitution in conjunction with Article 1 (Protection of property) of Protocol no. 1 of the European Convention on Human Rights (ECHR), and with Article 54 [Judicial Protection of Rights] of the Constitution in conjunction with Article 6 of the ECHR, arguing, among other things, that it has registered the trademark with IPA, and consequently, based on the Law on Trademarks, it is entitled to all the legal rights related thereto, also claiming that only IPA is competent to take the decision to reject the application for registration and/or declaration of the registered trademark as invalid.

In assessing the Applicant’s allegations, the Court first elaborated the general principles of its case law and that of the European Court of Human Rights regarding the right to property and then applied the latter to the present case. In this regard, the Court concluded that the “right to property” established in Article 46 of the Constitution in conjunction with Article 1 of Protocol no. 1 of the ECHR, applies to registered trademarks. In this context, the Court, based on the aforementioned case law, first analyzed whether in the present case there has been “interference” with his right “to property” and whether the assessment of the regular courts in this regard was arbitrary. In this regard, the Court assessed that the regular courts referred to two categories of reasoning, based on the applicable laws, to reject the lawsuit of the Applicant, namely (a) well-known trademarks; and (b) the use of national symbols.

The Court, in analyzing the reasoning of the regular courts, found that the latter, in essence, have applied, among other, the relevant provisions of the Law on Trademarks and the relevant provisions of international instruments and which specifically regulate the issue of “well-known trademarks “, and in this case, they found that the Applicant cannot stop the import of the other company’s goods, since they are “well-known trademarks”, and were as such even before the formal registration of the trademark by the Applicant in the IPA. Moreover, and regarding the use of national symbols, the Court assessed that regular courts, applying the relevant provisions of international instruments and which specifically regulate the issue of national and state symbols, had emphasized that the two companies use in their products elements of the flag and the national coat of arms of the Republic of Albania and that this fact constitutes a characteristic through which it is impossible for the Applicant to appropriate  this symbol as a trademark, and that in the circumstances of the present case, this means that the other party cannot be prohibited from using this sign.

Therefore and based on the clarifications given in the published Judgment, the Court found that the challenged Judgment [Rev. no. 29/19] of 1 July 2020 of the Supreme Court, is not rendered in violation of Article 46 (Protection of Property) of the Constitution in conjunction with Article 1 (Protection of property) of Protocol No. 1 of the ECHR.