No writer's block for Hemingway bar name registration

The Court of Appeals of Lisbon has overturned a lower court's decision and has allowed CASCAISTAPA - Bares e Restaurantes Lda to use the name Hemingway for its restaurant and bar (Case 43 357).

CASCAISTAPA applied to register the Hemingway name with the Portuguese Industrial Property Institute (INPI). INPI refused registration on the basis that a foreign-language name can only be used by a national of the country in which that language is spoken. It also held that the use of the Hemingway name (i) might be misleading to the public, or (ii) could be considered to be an unfair appropriation of the name. The Commercial Court of Lisbon upheld the decision and CASCAISTAPA appealed.

The Court of Appeal overturned the decision. It first noted that Hemingway is a historic name relating to the internationally famous author Ernest Hemingway whose works are part of the world's cultural heritage. The court found that it did not seem reasonable to consider that the use of the name for a restaurant and bar would cause any damage to the reputation of Hemingway or his estate.

The court next held that the use of the name (i) was unlikely to mislead the public, and (ii) did not amount to unfair competition under the Portuguese Industrial Property Code. It reasoned that there was no way of obtaining an illegitimate benefit through the use of the name Hemingway as it only evokes the author's books and other aspects of his life, such as the Spanish Civil War, bullfights or the island of Cuba. The court further held that Hemingway is the name of a person and is not a word in a foreign language. It added that it is only the use of the latter that is prohibited by the Industrial Property Code. Names do not necessarily relate to the language of the person using them. In addition, the court stated that when considering a historic name, the universal nature of the name should be taken into account, and not its linguistic and territorial connections.

Gonçalo Moreira Rato, Moreira Rato & Associados, Lisbon