With decision of April 17th 2024, the EU Court definitely rejected the application for registration of the EU trademark PABLO ESCOBAR because considered contrary to public policy and accepted principles of morality.
The case and the EUIPO decision
On September 30th 2021, Escobar Inc., company founded by Pablo Escobar’s brother, requested the registration of the “Pablo Escobar” trademark to distinguish many goods and services included in classes 3, 5, 9, 10, 12-16, 18, 20, 21, 24-26, and 28-45.
The receiving Office raised an objection on the grounds that the sign was contrary to public policy, pursuant to art. 7, par. 1 lett. F) of the EUTMR, as it was immediately clear that the filed trademark referred to Pablo Emilio Escobar Gaviria, known drug trafficker and Colombian terrorist.
In that instance, Escobar Inc. defended arguing, among others, that the activity of EUIPO should be carried out by weighting, on one hand, the right to freedom of expression as referred to in art. 10 of the European Convention on Human Rights (ECHR) – which would include the right to freely use signs one wants to register as trademark – and, on the other hand, the right of the public not to find offensive and intimidatory trademarks. On this regard, Escobar Inc. highlighted that the sensibility of the public should be measured by using the standard of a reasonable person with average sensitivity and tolerance thresholds. Moreover, leveraging on the presumption of innocence, the applicant company highlighted that Pablo Escobar had never been criminally convicted of any crime and the public perceive him mainly for his good deeds in favor of the Colombian population.
Nevertheless, with decision of June 1st 2022, EUPO confirmed the position of the examiner and rejected the application for registration of the trademark. According to the Office, in fact, the sign “PABLO ESCOBAR” would be associated to the name of the leader of the Medellin cartel. It was also considered as irrelevant that Pablo Escobar was known for his good deeds, because these were unknown to the majority of the public in EU, which instead knows about the crimes committed by the cartel. With respect to the innocence presumption, the Office stated that the crimes Pablo Escobar is accused of are facts known globally and, according to the Office, there had never been a conviction only because Escobar was killed by the Colombian police before he could be convicted.
Therefore, the Office confirmed the contrariety of the sign to public policy and the values on which the European Union is based, that is human dignity, freedom, equality, solidarity, the principles of democracy and the rule of law, in which the right to life and physical integrity are values without which the others could not be enjoyed.
Such values – the Office stated – hinder the juridical protection or the commercial exploitation of the name of the leader of a known terrorist group, which killed and injured thousands of people.
The appeal of the European Court
After the rejection of the appeal by the EUIPO’s Board of Appeals, Escobar Inc. addressed the EU Court. According to the applicant, EUIPO should have considered that there are names of characters, such as Robin Hood, which have become iconic in popular culture even if associated to crimes, reason why the names of “Bonnie and Clyde”, “Al Capone” or “Che Guevara” have already been registered as EU trademarks. Pablo Escobar – the applicant insists – would have become a figure known in popular culture precisely because of his many good deeds in favor of the poor, as much so as to be nicknamed the ‘Robin Hood of Colombia’.
This argument was not accepted by the court, that otherwise stated that the suffering caused by the Medellin cartel – of which Escobar was unquestionably perceived as leader – are not in any way erased by the transposition that the figure of Pablo Escobar has undergone in the popular culture.
Regarding the presumption of innocence, the Court stated that it is a fundamental right and that also the Regulation on EU trademarks must be interpreted in light of such rule. Nevertheless, according to the Court, this is not sufficient to overcome the objection for contrariety to public order and accepted principles of morality.
In fact, even keeping into account that Escobar had never been convicted by a court, it should also be considered that Escobar had voluntarily agreed to the reclusion in his “private prison”, La Catedral, as part of a deal with the then Colombian government, and that, in any case, to this day Escobar is perceived by the public as a symbol of organised crime and as responsible of many crimes.
Therefore, once again, the registration of the sign PABLO ESCOBAR as an EU trademark was excluded.
This decision of the Court has been issued a year later since a similar decision of rejection by EUIPO, for the same reasons, against an Italian applicant regarding the application for registration of the sign “PABLO ESCOBAR PLATA O PLOMO MEDELLIN” (decision of April 28th 2023).
In that case, EUIPO recalled that Pablo Escobar is considered the author of the assassination of 30 judges and 457 police agents, as well as of the attack to the Avianca 2023 airline flight which crashed in November 27th 1989 killing 110 people.
Even in that occasion, EUIPO stated that the requested trademark “contradicts the universal values on which the European Union was founded, promotes and trivializes criminal activity and transmit a message of support to terrorism” and that the public would have perceived it as contrary to commonly accepted principles of ethical behavior “as it transmits a shocking and offensive message, promotes drug trafficking and aims to gain financial profit from what is universally known as a tragic event”.
Ilaria Feriti