Protection against illegitimate use of titles of nobility

Petronilla Queen of Aragon (ruling 1137 until 1164) and Ramon Berenguer IV, Count of Barcelona depicted later in a 16th-century painting (Photo: Wikimedia Commons).

In Italy a person may call him/herself by any title of nobility desired. Titles of nobility are not forbidden, nor recognized by the Italian state. The Italian judicial system does not forbid the use of titles of nobility, but remains totally indifferent regarding its use. This means that Italian law does not attribute any value (neither value nor disvalue) to noble titles (see e.g. a recent ruling by the Italian court of Reggio Emilia (Tribunale di Reggio Emilia) of 12 December 2017, translated here). In other countries, like e.g. The Netherlands, it is forbidden to use a national title of nobility without being entitled to it. The use of foreign titles is not prohibited. Does this mean that in Italy a person can use/issue any title he likes? And does this mean that in The Netherlands any foreign title of nobility can be used freely? In this article I will show that this is not the case and that the legal protection of titles in various legal systems can be very effectively pursued.

Impersonating

With some exceptions, in most jurisdictions it is not unlawful to impersonate someone per se. In numerous countries however, it a criminal offence to dishonestly make a false representation with the intention of making a gain or causing a loss. Very often a false representation has the intention of causing some kind of tangible gain or loss. Gain or loss can be loss of money or property. Loss to reputation can have incalculable damage in this regard. It is very difficult to impersonate someone without then going on to commit another offence (either civil or criminal). Those who communicate with a impersonator, and share personal or confidential information, may have very serious damages claims.

One of the most common claims against an impersonator is passing off. In commerce, an example is where an individual misrepresents himself as a representative of a company, or his services to be those of company. In more personal cases, the result is the same, for example when someone falsely suggests that such a high-profile person has endorsed him. Impersonation takes place if any part of a person’s identity is used in a way that does not fit with the characteristics of the actual person concerned. Depending on the legal system, impersonation can result in a criminal offense and/or in civil liability.

Case study: impersonating and its consequences

Diploma, issued by mr Stefan Cernetic, bestowing a false knightly order.

Publicly impersonating being a descendent from a monarch and beloning to a specific royal family, thus not having a legitimate historical claim to a so called fount of honor, in my opinion, can lead to both criminal and civil liability. One example would be when someone pays a fee to a illusionary royal descendent in order to obtain a noble title. Another example would be when a reputation is damaged if it turns out that a title of nobility has no historical background, such as in the case of Mrs Pamala Anderson, a famous actress and animal rights campaigner. Mrs Anderson was “officially” declared Countess de Gigli at a ceremony in Genoa (Italy) in 2015. The deed was carried out by the self-declared Prince of Montenegro, a man called Stefan Cernetic. The deed was a horrible act of abusing the trust of a vulnerable lady. Cernetic has been charged with impersonation by the Italian police in 2017.  Mr Cernetic is not in any way related to Nikola II Petrović-Njegoš, Crown Prince of Montenegro (born 7 July 1944), who is the legitimate Head of the House of Petrović-Njegoš, which reigned over Montenegro from 1696 to 1766 and again from 1782 to 1918. A third example of impersonation would be to use a title that is connected to an existing family of noble descent, e.g. Count Bismarck, thus giving the impression that the impersonator is part of that noble family.

Mr Cernetic with the Archibishop of Monaco, His Eminence the Cardinal Bernard Barsi (source: STEFAN CERNETIC/FACEBOOK)

It should be remembered that historical fact-finding is achieved through scientific reasoning and solid evidence, not via “approval” from a self-appointed “authority” or by somebody who happens to be descended from royalty. Violating these conditions and subsequently issue noble titles may lead to a impersonation. The recipient of the title is deceived. That impersonators gain social acceptance on the internet or edit entries in Wikipedia does not make them real. The recipient believes that the title has a historical background, but in fact this background is fabricated. In contrast, the mentioned criminal court ruling of the Italian court of Reggio Emilia (Tribunale di Reggio Emilia) of 12 December 2017 shows that Prince Thorbjorn Paternò Castello (see below) is not impersonating recipients of his honorific accessories, because the prince has a legitimate claim regarding such honors. This does not mean that such a claim cannot be challenged, only that the claim is reasonable (meaning: not fabricated or false), like in the Cernetic-case.

Breach of Intellectual Property rights

In most countries it is also a civil and criminal offense to falsely claim that someone is the author of a literary, dramatic, musical or artistic work. It might seem odd to think of title of nobility as being included. Copyright can be seen as a law that gives a person ownership over the things created by that person (the author). As defined by the Berne Convention, the moral rights of the author include: the right to claim authorship of the work (1); the right to object to any distortion, mutilation or modification of the work (2) and the right to object to any derogatory action that may damage the authors honor or reputation (3). It is not always easy to establish whether a work falls within the definition of artistic works. Therefore, the question whether or not a title of nobility cannot be solved by detailed definitions of artistic works without creating the opposing problem that such a definition is too narrow. Cited in the 2011 ruling by the Supreme Court of the United Kingdom in Lucas films vs. Ainsworth, Judge Mann believes that in many cases it is only the artistic purpose of the artist which makes an otherwise banal object an “artistic work”. I believe that this factor for determining whether or not a work is an artistic work is crucial. It avoids judges becoming the arbiter of “what is an artistic work” and instead places the onus on the intentions of the artist. A title of nobility can be intended as a artistic work when its specific elements, which alone do not need to attract copyright, together form a ‘unity’ with an own, original character (compare Court of Appeal of Amsterdam 27 June 2002). The latter meaning that it carries the personal character of the maker.

Case study: IP-law protection of legitimate titles

Prince Thorbjorn Paternò Castello, descendent of an ancient Sicilian noble family and claimant to the dynastic rights of the former kingdom of Aragon, signing a nobility diploma.

To demonstrate originality, the question should be answered whether the author has made use of the creative space to produce an intellectual creation that can be considered the author’s own (Van Gompel 2014, p. 138). This is the case with titles created by Mr Thorbjorn Paternò Castello, in his capacity as claimant to the dynastic rights of the ancient Royal House of Valencia and Aragon. With the creation of the title, the prince becomes the author of the artistic work, consisting of a written description of the historic background, a description and a color image of the coat of arms that is connected to the title, a chosen and unique combination of words that are designated as a noble title (e.g. Count of Vall de Almonacid of the Sovereign House of Valencia) and can be used as a honorific accessory to a person’s name/identity, and the subsequent courtesy by the relevant community of addressing the person by his noble title. It can be said that the creation of such a title is intended to be an artistic work by both the issuer and the recipient, since it is intended to be a unique honorific accessory to the recipient’s name, based on the personal historical background of the issuer. The title has commercial value because the recipient often pays a fee for the transfer, that is used to fund charity projects of the prince.

Coat of arms beloning to a title of nobility, issued by prince Thorbjorn.

The IP-rigths are transferred in the diploma from the prince to the recipient with the right to transmit them perpetually from male to male in order of primogeniture, and, in the absence of heirs, to the first born of the closest line, and, in the absence of males, una tantum to females. Both male and female collaterals have the title of “Noble of the”, as is the custom, and in any case, the title of “Don” and “Donna” (letter of patent issued to John Wayne Rinkle, 28 September 2010).

Conclusions

In countries where there does not exist a direct protection against illegitimate issuance or use of titles of nobility, the law still offers a serious degree of protection against misuse. Historical legitimacy is required. Therefore, only under this condition, issuers and recipients of noble titles can claim legal protection as described above.

Literature
Van Gompel, S. (2014). Creativity, autonomy and personal touch: A critical appraisal of the CJEU’s originality test for copyright. In M. van Eechoud (Ed.), The work of authorship (pp. 95-143). Amsterdam: Amsterdam University Press.

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