Advocate general delivers opinion in BAVARIA Case

European Union

In Bavaria NV v Bayerischer Brauerbund eV (Case C-343/07, December 18 2008), Advocate General Mazák has delivered his opinion in a dispute involving the protected geographical indication (PGI) 'Bayerisches Bier' (German for 'Bavarian beer') and the trademark BAVARIA.

Bayerischer Brauerbund eV (BB), which was founded in 1880, aims to promote the interests of Bavarian brewers and protect the term 'Bayerisches Bier' around the world.
Originally, 'Bayerisches Bier' was protected only by:
  • unfair competition rules;
  • collective trademark registrations; and
  • five bilateral agreements between Germany on the one hand, and France, Greece, Italy, Spain and Switzerland on the other.
On January 20 1994 BB filed an application for the registration of 'Bayerisches Bier' under Article 17 of Council Regulation 2081/92 on geographical indications and designations of origin for agricultural products and foodstuffs. Seven years later, 'Bayerisches Bier' was registered as a PGI under Council Regulation 1347/2001.
Bavaria NV and its Italian subsidiary (collectively Bavaria) have used the company name Bavaria since 1930 and own international trademark registrations containing the word 'Bavaria' which date back to 1971.
BB brought proceedings against Bavaria in various countries, including Italy, seeking to stop the latter from using the BAVARIA marks. The Turin District Court ordered that Bavaria stop using the marks in Italy. Bavaria appealed to the Turin Court of Appeals, which referred several questions to the ECJ for a preliminary ruling. In his opinion, Advocate General Mazák considered several issues. 
The first issue was whether the questions referred to the ECJ by the Italian court were admissible, or whether Bavaria should have attacked the validity of Regulation 1347/2001. The advocate general stated that there were legitimate doubts as to whether Bavaria was directly concerned by Regulation 1347/2001. Therefore, the reference for a preliminary ruling was admissible.
The second issue was whether beer should be considered as a 'foodstuff'. Although the annexes to the EC Treaty do not mention beer as an 'agricultural product', the advocate general was of the view that beer was a 'foodstuff' under Regulation 2081/92, as the other products mentioned in the annex to the regulation are clearly agricultural products.
Further, according to the advocate general, the simplified procedure for the registration of a PGI under Article 17 of Regulation 2081/92 did not unfairly limit the rights of third parties to object to a proposed registration. Referring to Kühne, the advocate general held that third parties could still make objections at the national level.
The advocate general also examined whether BB had satisfied the requirements for the registration of 'Bayerisches Bier' under Article 17. Germany has no national system for the registration of PGIs. Therefore, the German government may rely only on the unfair competition rules and the bilateral agreements with other EU countries. The advocate general stated that the terms "legally protected name" and "established by usage" in Article 17 should be interpreted broadly. Therefore, the substantial use of the term 'Bayerisches Bier' in the region of Bavaria justified the protection of the term as a PGI. The fact that it took almost seven years for BB to register 'Bayerisches Bier' and that there were subsequent amendments to its application were deemed to be irrelevant. The advocate general concluded that the application had not been made outside the period set forth by Article 17.
Bavaria also argued that 'Bayerisches Bier' was a generic term and, therefore, should not have been registered as a PGI. Bavaria also claimed that the term "exhibit[ed] no ‘direct link’ [...] between a specific quality, reputation or other characteristic, and its specific origin (Bavaria)". The advocate general disagreed, stating that the registration of 'Bayerisches Bier' was valid based on the reputation and quality of the beer produced in the region of Bavaria. Even though different types of beer are produced in Bavaria, the advocate general believed that all producers in that region could benefit from the PGI 'Bayerisches Bier'.
Bavaria also submitted that since Bavaria is a 'country', the registration of a PGI of the same name constituted an infringement of Article 2(2)(b) of Regulation 2081/92. The advocate general disagreed, holding that the term 'country' refers only to member states of the European Union, while Bavaria is only a region of Germany with a particularly strong cultural identity and tradition. The fact that the term 'Bavaria' has become used generically to denote beer in Denmark did not prevent the registration of 'Bayerisches Bier' as a PGI. Therefore, the registration was valid. 
In light of the above, the issue was thus whether the registration of 'Bayerisches Bier' as a PGI prevented the use of the word 'Bavaria' as a trademark for beer. According to the advocate general, the issue must be decided on a case-by-case basis by the national courts, and Regulation 1347/2001 has no impact on the interpretation of this issue. If an earlier trademark containing the word 'Bavaria' was registered in good faith prior to the registration of the PGI 'Bayerisches Bier', and if the mark was not liable to be declared invalid or revoked, the trademark and the PGI could then coexist. However, if these requirements are not fulfilled, the protection of the PGI would prevail over the trademark. 
Whether the ECJ will follow these guidelines remains to be seen. If the ECJ follows the opinion of the advocate general, the case would be referred back to the Turin Court of Appeals, which would have to decide whether the PGI 'Bayerisches Bier' and the trademark BAVARIA can coexist.  
Carsten Albrecht, FPS Fritze Paul Seelig, Hamburg


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