The Princess and the Personal Name: a reader comments

"Here comes that
Landeshauptmann :
now where shall
I hide my title?"

In "A tale for our time: Princess Ilonka and the Landeshauptmann" (here), the IPKat reviewed in fairly critical terms the litigation in which the Court of Justice of the European Union ruled last year, that Austria was in principle entitled to refuse, for public policy reasons, to recognise the name which one of its citizens acquired by her subsequent adoption in Germany, so long as this refusal was "necessary for the protection of the interests which they are intended to secure" and "proportionate to the legitimate aim pursued".  The name in question is "Ilonka Fürstin von Sayn-Wittgenstein", and the disputed part of it is "Fürstin von", which means "Princess of". The Kat felt that the court's was wrong in principle and also considered that there were intellectual property issues at stake, where for example a person sought to exploit or protect the goodwill in her name or to register it as a Community trade mark. The Kat has since received this comment, from a correspondent who wishes to remain anonymous:

"Many thanks for the post about Ilonka Sayn-Wittgenstein. But may I respectfully disagree with you - I don't think she should be allowed to use the title as part of her legal name. Like you, I have no interest in allowing or preventing the use of titles as names, but I do not think that it is justified in this case.

As you note, there are historical reasons for the Austrian law - but I do think it is still an important law. Nobility has been part of central European history for a very very long time, and the law is the consequence of a long historical process across central Europe in the 18th -19th century. It was a real achievement at the time. Both Germany and Austria abolished the rights relating to titles in 1919 although they are still very much present in Germany, today.

In principle, I don't agree that a person can request that her name is changed contrary to the national law that applies to that name because the (German) authorities failed to apply the correct conflict of law rules.  I agree with the Landeshauptmann that the Germans in this case didn't know their own law:  they should have applied Austrian law first time round. And I do not think it is correct to rely on such obvious mistakes to push something through that is against the law.

Even under German law she may no longer be allowed to use the title. I haven't double-checked the Wikipedia entry about this but, if it is correct, then German law does not accept a title as part of a name if the country in which the relevant person is a national did not accept it as part of the name. So it seems that even in the event that Ilonka took German nationality she would still not be allowed to use the title in Germany because, according to Austrian law, she never legally carried the name it in the first place.

I think that there should be a clear difference between using one's name as a personal name and using it as a trade mark or commercial name. This does not appear to come out of the ECJ judgment too clearly. For different reasons, different rules apply to both and they cannot be mixed up. Personal name rights have evolved over centuries and are part of a cultural heritage of a country. Personal names must take into account the names of children and personality rights. Similarly, commercial names comply with certain rules such that they must be non-descriptive and distinguishable. Even if someone chooses to use his or her personal name as a trade mark and/or commercial name he or she has to accept that they are subject to different rules depending on where and how they are used. If looking at the EU with its 27 countries, and cross-border issues, it is ever more important to distinguish between rights linked to a person's nationality and commercial rights. The EU is primarily a commercial union, and any impact on (national) name rights should be considered in this context - i.e. to facilitate the movement of persons not the movement of goods and services".

Resisting the temptation to take a poll of readers, the IPKat is nonetheless interested to receive interesting and thoughts about choice of name and its interface with (i) regular IP and (ii) rights of privacy/publicity.  Please post your comments below.

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