On January 30, 2018, the European Court of Human Rights (ECHR) made a landmark judgment in Sekmadienis v. Lithuania
(application No. 69317/14) on the concept of “public morals” in commercial advertising.
The Lithuanian clothing company Sekmadienis Ltd was fined by the local authorities for a series of ads that were considered to be antithetical to public morals pursuant to Article 4, Section 2(1) of the Lithuanian Law on Advertising. The ads represented male and female models with halos and slogans such as: “Jesus, what trousers!”, “Mother of god, what a dress!”, and “Jesus, Mary! What a style!” (images 1, 2, and 3, respectively).
Sekmadienis unsuccessfully tried to appeal this decision several times by claiming that the expressions used in the ads were merely spoken Lithuanian interjections rather than direct references to religion. Finally, Sekmadienis filed a claim with the ECHR stating that the fine violated their freedom of expression in the framework of Article 10 of the European Convention on Human Rights.
According to Article 10 of the Convention, an interference with one’s own freedom of expression is allowed if it is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society. The ECHR, however, was critical of the opinion of the Lithuanian authorities that the ads promoted a lifestyle that was incompatible with the principles of a religious person without further explanation as to how such lifestyle was promoted and why it was incompatible. Moreover, the ECHR held that an acceptable interference with freedom of expression would refer to ideas or information that are shocking, offensive, or disturbing, which was not the case with Sekmadienis. Thus, the Lithuanian authorities failed to unambiguously explain what was antithetical to public morals in the ads except for the models resembling Jesus Christ and Mary.
The ECHR therefore ruled that the Lithuanian authorities failed to strike a fair balance between the protection of public morals and rights of religious people, and the rights of Sekmadienis to freedom of expression in terms of Article 10 of the Convention. The decision became final on April 30, 2018, and the parties are currently awaiting an action plan that sets out the measures for implementation of the decision. (Image 2)
The decision is interesting, especially in contrast with the recent Fack Ju Göhte
case, due to inconsistency in various courts’ approach to the treatment of public policy and accepted principles of morality in the fields of trademarks and commercial advertising. Although this decision does not invite parties to file marks that challenge public morality laws, it may affect future trademark practice of the EUIPO regarding refusals on absolute grounds.
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