Until very recently the IPKat had never heard of Ilonka Sayn-Wittgenstein. Now he thinks she's heading to be a household name, either as described above or, as she would prefer it, as Ilonka Fürstin von Sayn-Wittgenstein. The long name is banned by the Austrians, it seems, but the Germans have no problems with it. The lady is an Austrian, but lives and works in Germany. All this is the stuff of which exciting references to the Court of Justice of the European Union are made. And don't think that this has nothing to do with intellectual property, because it does.
|The history of Europe used to be|
the story of mad kings; now we
have so few monarchs, our
legislators, administrators and
judiciary have to take it in turns
to be mad ...
At first all went well. The Austrian authorities registered Ilonka's long but apparently legal surname in the Austrian register of civil status; she received a German driving licence in that name and incorporated a German company under it. Her Austrian passport was renewed at least once in her princessly persona, in which the Austrian consular authorities in Germany treated her to two certificates of nationality.
|Without the goodwill in "Fürstin von", Ilonka might|
end up selling castles of a less grand nature
|Born in 1944? The IPKat hopes the castles|
she sells are as well-preserved as she is ...
Hearing this dispute, the Verwaltungsgerichtshof probably thought "(i) whichever side we hold for, we'll upset the other side, (ii) we can see both sides of the answer, (iii) we don't know the answer anyway and (iv) no-one likes the Court of Justice, which is in any event on neutral soil", so it decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:
‘Does Article [21 TFEU] preclude legislation pursuant to which the competent authorities of a Member State refuse to recognise the surname of an (adult) adoptee, determined in another Member State, in so far as it contains a title of nobility which is not permissible under the (constitutional) law of the former Member State?’The Court of Justice of the European Union (Second Chamber) has now held that the question should be answered as follows:
"Article 21 TFEU must be interpreted as not precluding the authorities of a Member State, in circumstances such as those in the main proceedings, from refusing to recognise all the elements of the surname of a national of that State, as determined in another Member State – in which that national resides – at the time of his or her adoption as an adult by a national of that other Member State, where that surname includes a title of nobility which is not permitted in the first Member State under its constitutional law, provided that the measures adopted by those authorities in that context are justified on public policy grounds, that is to say, they are necessary for the protection of the interests which they are intended to secure and are proportionate to the legitimate aim pursued".In other words, the court is saying [according to Merpel]:
"We are delivering a ruling that is applicable only to situations with the same unusual facts as this one; we can't tell from Luxembourg whether the conditions in Austria in 2010 are such as to justify the protection of interests which they are intended to secure, not that we can even imagine what they are, and we leave it to the referring court to determine what the legitimate aim pursued by the Law on the Abolition of the Nobility is, and whether trying to stop a German resident from selling castles under her preferred name is a proportional response to the threat of people with funny names staging a coup and reinstating the Habsburgs".The IPKat, who has no interest in either promoting or preventing noble names, thinks the prohibition on Ilonka being able to use her chosen name is pathetic and an embarrassment to 21st century Austria. Ilonka can register her full German name as a Community trade mark, which will cover the whole of Austria; she can trade in castles in Germany and watch with amusement as the goodwill in her business crosses the Austria-German border on foot, by car, on TV and radio and via the internet. Austria has a past -- as do many countries -- and is entitled to escape from a return to it; but Austria also has a present and a future, and it may be wondered whether the ban on titles of nobility, and on Austrians getting adopted by title-bearing Germans, is still relevant. Merpel adds, from a trade mark infringement and passing-off point of view (in those countries where it is appropriate), the "bona fide use of one's own name" defence generally depends on one's use of the exact name and not a variant of it; if Ilonka is unable to continue to use the name of her choice, the availability of that defence might be at risk.
Castles in the air here, here and here