Commercializing Human Rights: Trademarks in Europe AfterAnheuser‐Busch v Portugal

Abstract

This article uses the European Court of Human Rights decision inAnheuser‐Busch v Portugal(2007) to explore the intersection between intellectual property—specifically trademarks—and human rights. It applies the three possible paradigms of intellectual property—human rights jurisprudence identified by Laurence Helfer—“rule of law”, “enforcement” and “balancing”—toAnheuser‐Buschand then critiques the court's lack of engagement with the intellectual property elements of the case, particularly the theoretical underpinnings of trademark law as distinctly commercial property. It concludes that this makes trademarks especially unsuitable for treatment in a human rights context. Agreeing with Helfer's prescription for the “rule of law” paradigm when taking such cases in the future, this article emphasizes that an additional sensitivity to the special nature of the subject matter must be involved if the court were to take intellectual property cases in the future. This is particularly important given that court's oversight may enable the proliferation of the concept of “corporate human rights”—potentially leading to corrosive effects on the integrity of the human rights law it seeks to protect.

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