Lithuanian Court of Appeals 25 March, 2002 (Alec M. Gallup vs. Suomen Gallup OY)

The Lithuanian Court of Appeals adopted the first ruling in a civil case regarding the registration of a trademark bearing a surname.

The history of the case was very simple: the owner of the trademark registration GALLUP sued the Lithuanian company BALTIC SURVEYS LTD for infringement of trademark owner's rights. The co-founder of this Lithuanian company, Mr. Alec M. Gallup, filed the claim with the Vilnius district court asking that the trademark registration GALLUP be declared void. The plaintiff stated that the defendant's trademark registration was made illegally, without the plaintiff's permission to register his surname as a trademark in the Republic of Lithuania.

This was the first case of its kind in Lithuania, and bearing in mind that the former Law on Trademarks and Service marks hadn't regulated this question precisely, specifically concerning whose permission was needed to register a trademark bearing a surname. The plaintiff agreed that his father, the founder of the opinion polling business in the USA, had given consent to the defendant to use his surname Gallup in trademark and trade name. However the plaintiff argued that the consent had been given only to use the surname, without the right to register it as a trademark, and only in the territory of Finland - the domicile country of the defendant. The plaintiff also stated that upon the death of his father he was the possessor of his father's non-proprietary rights to the surname, and he was of the opinion that he could revoke the consent given by his father.

When examining the case the court had to answer two questions: 1) could the consent given by the plaintiff's father, George H. Gallup, in Finland be applied to the registration of the trademark or only for the use of the same, and if this consent could be applied to Lithuania, and 2) whether the successor could revoke the consent given by his father.

In reference to the second question, the court decided that the consent is a one-sided transaction in which the duration is not related to the applicant's life span. Therefore successors can not contradict any legal consequences that arise from it in the specific sphere of the trademark relations nor can they revoke such consent.

The first question however was more complicated. The written consent given by the father of the plaintiff seemed to be unlimited. There were no restrictions with respect to the territory, quantity of marks and the term of validity. The plaintiff argued that the consent had been given only for use in the territory of Finland. In order to support this argument the correspondence regarding the consent to register the trademark GALLUP in Finland between the founder of the defendant company, Suomen Gallup OY, and Mr. George H. Gallup, was presented. However the court found the argument that the written consent was valid only in the territory of Finland groundless because there were no such indications in the document. The court also considered unproven the plaintiff's statement that the surname had been allowed to be used in the trademark without its registration. The mentioned correspondence contrary confirmed that written consent had been received when the necessity to register such a mark appeared.

The court also found that the plaintiff did not question the defendant's right to use the surname Gallup in its activity in Finland, including registering the corresponding trademark. Therefore having recognized the rights of the defendant in Finland it was impossible to deny them in Lithuania.

On these grounds the claim was rejected.

The plaintiff filed an appeal arguing the validity of consent given by his father based on the argument that the personal non-proprietary right to a surname is one of the elements of the scope of legal capacity, as well as the fact that Art. 9 of the Civil Code provides that a person's legal capacity ceases to exist from the moment of such person's death, and he was of the opinion that personal non-proprietary rights to the name "Gallup" ceased to exist in 1984 when George H. Gallup died.

The Lithuanian Court of Appeals rejected the appeal and sustained the decision of the Vilnius district court.

The Board of Justices of the Court of Appeals found that the court of the first instance made a substantiated conclusion that the trademark GALLUP was to be considered legally registered for the reason that consent was given to the same by Mr. George H. Gallup - holder of the rights to the name "Gallup". The court, having examined the evidentiary material of the case in its totality, established that the aforementioned consent was received by the defendant in 1965, not only for the purpose of using the surname of "Gallup" in the name and trademark of the firm, but also for the purpose of registering that trademark.

The argument that the defendant could register the trademark in which the surname "Gallup" was used only within territory of Finland was rejected as well because no evidence thereof was present.

The court decided that the registration of the surname as the trademark of the other enterprise didn't restrict the plaintiff's personal right to his surname; the plaintiff had confused his right to the surname with the right to trademark, the latter being the subject of property but not personal law.

The court also decided that the plaintiff, Alec M. Gallup, had no right after the death of his father, George H. Gallup, to revoke the consent given by his father for the use of his surname in a trademark and firm name, since neither the national laws nor the norms of international law provided for such a possibility.

By virtue of the above mentioned arguments the Board of Justices found no grounds for reversal of the decision of the Vilnius district court, therefore the resolution of the case that the trademark GALLUP was registered lawfully with the consent of the proprietor of the surname - George H. Gallup - has been left unchanged.

Ó Inga Lukauskienë 2002.

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