Article 48 - Presumption of innocence and right of defence
Key facts of the case:
EU trade mark – Application for the EU word mark Pablo Escobar – Absolute ground for refusal – Trade mark contrary to public policy and to accepted principles of morality – Article 7(1)(f) of Regulation (EU) 2017/1001 – Presumption of innocence
Outcome of the case:
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.
39. The applicant submits that, by refusing, in the contested decision, to register the mark applied for on the basis of alleged criminal acts attributed to Pablo Escobar, the Board of Appeal infringed its obligation, under the case-law, to take account of the fundamental right to the presumption of innocence, as enshrined, in particular, in Article 48 of the Charter, in the application of Article 7(1)(f) of Regulation 2017/1001, in respect of which it has a broad discretion. In that context, and contrary to what it did in other previous decisions, the Board of Appeal did not correctly weigh the opposing interests of the relevant public and the applicant for registration. By refusing registration of the mark applied for on the basis of the premiss that, first, the acts committed by Pablo Escobar were known facts, to be taken into account independently of any conviction, and in respect of which he was not convicted solely because he had been killed by the police beforehand and that, second, in the context of Article 7(1)(f) of Regulation 2017/1001, it only matters that the relevant public associates the name of Pablo Escobar with crimes, the Board of Appeal infringed Pablo Escobar’s fundamental right to the presumption of innocence.
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42. The principle of the presumption of innocence, which constitutes a fundamental right set out in Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and in Article 48(1) of the Charter, confers rights on individuals which are enforced by the Union judicature (see judgment of 6 June 2019, Dalli v Commission, T‑399/17, not published, EU:T:2019:384, paragraph 168 and the case-law cited).
44. As the applicant correctly points out, the application of Article 7(1)(f) of Regulation 2017/1001 must, admittedly, be reconciled with the fundamental right to the presumption of innocence, laid down in Article 48(1) of the Charter, as confirmed by recital 21 of that regulation, which expressly emphasises the need to apply that regulation in such a way as to ensure full respect for fundamental rights and freedoms (see, to that effect and by analogy, judgment of 27 February 2020, Constantin Film Produktion v EUIPO, C‑240/18 P, EU:C:2020:118, paragraph 56).
45. However, in the contested decision, the Board of Appeal did not derogate from the general principle of EU law of the presumption of innocence in respect of Pablo Escobar.
