So now we're agreed, the European Emblem is protected

The Official Journal of the European Union is a fascinating place from which one can glean all sorts of interesting news about intellectual property that might otherwise be missed. An example, posted here this weekend, is the Administrative agreement with the Council of Europe regarding the use of the European emblem by third parties. It reads, in full, like this:

"Administrative agreement with the Council of Europe regarding the use of the European emblem by third parties (2012/C 271/04)

1. General principle

Any natural or legal person (‘user’) may use the European emblem or any of its elements, subject to the following conditions of use.

2. Conditions of use

The use of the European emblem and/or any of its elements is allowed, irrespective of whether the use is of a non-profit or commercial nature, unless:

(a) the use creates the incorrect impression or assumption that there is a connection between the user and any of the institutions, bodies, offices, agencies and organs of the European Union or the Council of Europe;
(b) the use leads the public to believe erroneously that the user benefits from the support, sponsorship, approval or consent of any of the institutions, bodies, offices, agencies and organs of the European Union or the Council of Europe;
(c) the use is in connection with any objective or activity which is incompatible with the aims and principles of the European Union or of the Council of Europe, or which would be otherwise unlawful.

3. Trade mark and related issues

The use of the European emblem in accordance with the conditions in the previous section does not mean consent to registration of the emblem or an imitation thereof as a trade mark or any other IP right. The European Commission and the Council of Europe will continue the monitoring of applications for regis­tration of the European emblem or part thereof as (part of) IP rights, in accordance with the applicable legal provisions.

4. Legal responsibility

Any user that intends to use the European emblem or elements of it may do so on its own legal
responsibility. The users will be liable for any abusive use and possible prejudice following from such use under the laws of the Member States or any third country applicable to them. 

5. Right to pursue any abuse

The Commission reserves the right to pursue on its own initiative or on request by the Council of Europe:
— any use which does not comply with the conditions set out herein, or
— any use which the Commission or the Council of Europe deem abusive in the courts of the Member States or any third country".

The IPKat is a little concerned that there is no clear indication as to what is meant by "the European emblem or part thereof". The Europa Interinstitutional style guide gives details as to how the emblem should be used, in somewhat different terms:

"The European emblem may be used only if:
— there is no likelihood of the user of the emblem being confused with the European Union or the Council of Europe;
— the emblem is not used in connection with objectives or activities that are incompatible with the aims and principles of the European Union or of the Council of Europe. 

Permission to use the European emblem does not confer on those to whom it is granted any right of exclusive use, nor does it allow them to appropriate the emblem or any similar trade mark or logo, either by registration or any other means. Each case will be examined individually to ascertain whether it satisfies the criteria set out above. Permission will be unlikely in a commercial context if the European emblem is used in conjunction with a company’s own logo, name or trade mark"

Do incorrect uses listed in the style guide, such as displaying it upside-down (see image on the right), count as use of the emblem of a part thereof? [Merpel blushingly confesses as this point that she didn't even know it had an upside-down ...]. Curiously, the Interinstitutional style guide names two different bodies from which to seek permission to use the emblem: Directorate DG 4 ('General Institutional Issues') for applications from EU Member States and the Directorate of Legal Advice and Public International Law for applications from elsewhere.

The IPKat also wonders what legal relief might be available to the Council of Europe (or the European Commission, or the European Union,for that matter) if an action were to be commenced against the unauthorised user of the emblem or a part thereof.  Duly enacted Regulations take direct effect in the national law of EU Member States, but what precisely is the legal status of this Agreement?

Merpel adds: a quick online search did not reveal that the emblem was protected as a Community or UK trade mark. While the emblem should be entitled to protection under the Paris Convention on the Protection of Industrial Property, Article 6 ter, there's not much European Union or national case law on damages, accounts of profits, injunctive relief and so on when the right being enforced relates to "State Emblems, Official Hallmarks, and Emblems of Intergovernmental Organizations".

Both Kats wonder whether the wording of the Agreement in any event permits the use of the emblem as a design, perhaps as a theme for fabric, gift-wrappings or wallpaper. They don't imagine that they will get a response from the mandarins at the top of the European Union tree, whose preferred policy is to lie doggo till the Kats have finished their miaow and then just get on with their own sweet lives. However, there may be one or two readers who have some thoughts on this topic ...