The Robin Hood of Colombia
The registration of the Pablo Escobar trademark had been applied for by Escobar Inc, an organization founded by Roberto De Jesús Escobar Gaviria, an older brother of Pablo. Before the European Court, Roberto had still argued that Pablo had become a mythical figure who did a lot of good for the poor after all. This, he noted, even earned him the nickname “the Robin Hood of Colombia”. Yet the Court did not want to give this “goodness” of Pablo too much weight. ‘The public would associate the name of Pablo Escobar with drug trafficking and narco-terrorism and with the crimes and suffering resulting therefrom, rather than with his possible good deeds in favour of the poor in Colombia’, the Court ruled.
Bonnie & Clyde
But what about the trademarks Bonnie & Clyde, Al Capone and Che Guevara, Roberto tried. Surely these are also registered as trademarks in Europe? Incomparable, according to the Court. Bonnie & Clyde, Al Capone and Che Guevara have become iconic figures. The offensive nature of these names has diminished over time; they have more to do with history than current events, the Court believes. However, the trademark Pablo Escobar can be understood by consumers as highly offensive or shocking, as a trivialization of the suffering of thousands of people caused by Escobar’s Medellín cartel. So no trademark for Pablo!
Pablo Never Convicted
Well, I do understand, but I still find it difficult to determine exactly where the line is drawn. For example, do you have to be convicted of criminal behavior to be refused a trademark? That was another argument Roberto Escobar made: Pablo was never convicted! No logically, when he was arrested in 1993, he was killed and thus the judge didn’t get involved. Moreover, the Court said, he did volunteer to be locked up in “his” prison, La Catedral, as part of a deal with the government.
History or actuality
Another tricky question is when does someone, like Al Capone, relate more to history than current events and thus qualify for registration? Stalin, Idi Amin, Lee Harvey Oswald? Are they already mostly history or still offensive actuality? Name it.
Holleeder and Epstein
And how criminal do you have to be, anyway? Did the Dutch criminal Willem Holleeder – not only convicted for the kidnapping of beer magnate Freddy Heineken, but also for various assassinations – misbehave sufficiently for disqualification as a trademark? I think so. But his less violent buddy Cor van Hout? Do we experience the Cor van Hout trademark as shocking? I don’t believe Cor ever killed anyone. But is “killing someone” the right criterion? I wonder. I suspect that the mark Jeffrey Epstein, who only killed himself, will run into problems at the gates of the trademark registry anyway.
Harvey Weinstein
In short, blurred lines and still many questions. But should Harvey Weinstein come to our office tomorrow with a request to register his name as a European trademark, I think that – despite the fact that Weinstein has not yet been convicted nor has he killed anyone – we will still tell him: “That won’t work Harvey!” But maybe we shouldn’t lend ourselves to that job anyway.
Bas Kist
Pablo Escobar: Ghazi777755, CC BY-SA 4.0, via Wikimedia Commons
Bonny and Clyde: Library of Congress, Public domain, via Wikimedia Commons
Al Capone: Chicago Bureau (Federal Bureau of Investigation) – Wide World Photos, Public domain, via Wikimedia Commons
Willem Holleeder: Rob Bogaerts / Anefo, CC0, via Wikimedia Commons
Harvey Weinstein: David Shankbone, CC BY 3.0, via Wikimedia Commons
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