Advocate general's opinion deals blow to Budvar

European Union
In Budejovický Budvar National Corporation v Rudolf Ammersin GmbH (Case C-478/07, February 5 2009) , in a reference for a preliminary ruling from the Commercial Court of Vienna, Advocate General Damaso Ruiz-Jarabo Colomer has delivered a 138-paragraph opinion that sought to analyze and organize some of the issues surrounding the status of the Bud name.

Czech brewery Budejovický Budvar and US brewery Anheuser-Busch InBev NV have been involved in a lengthy battle over the rights in the BUD mark.

Budvar argued that it owned the rights in the mark because its beer comes from the city of Ceske Budejovice, or Budweis in German. Budvar claims that:
  • 'Bud' has been a national geographical indication in the Czech Republic since 1975; and
  • in 1976, this protection was extended to Austria by a bilateral agreement. 
Anheuser-Busch, which is fighting to lift an injunction that has prevented it from selling beer under the name American Bud in Austria since 1999, stated that it owned the rights in the marks BUD or BUDWEISER in 23 out of the 27 EU countries.  
The brewers are said to be involved in more than 20 court cases and almost 60 administrative proceedings worldwide.
According to the advocate general, Budvar may keep the rights in Austria only for a name that:
  • is a simple geographical indication;
  • refers to a region only; and
  • Czech consumers associate with beer from a specific region.
In particular, the advocate general held as follows:
(1) The requirements defined by the [European] Court of Justice in [...] Budejovický Budvarfor the protection as a geographical indication of a designation which in the country of origin is the name neither of a place nor of a region to be compatible with Article 28 EC:

(1.1) mean that the name must be sufficiently clear to call to mind a product and its origin;

(1.2) are not three different requirements which must be satisfied separately;

(1.3) do not require a consumer survey or define the result which has to be obtained in order to justify protection;
(1.4) do not mean that, in practice, the name must be used in the country of origin as a geographical indication by more than one undertaking and say nothing about its use as a trademark by a single undertaking.

(2) When a designation has not been notified to the [European] Commission under Council Regulation 510/2006,[ ...] national protection in force or protection bilaterally extended to another member state becomes invalid if the designation is a qualified geographical indication under the law of the state of origin, having regard to the fact that Regulation 510/2006 is exclusive as regards the indications within its scope of application.

(3) The fact that the Treaty of Accession between the Member States of the European Union and a new Member State introduces protection for various qualified geographical indications for a foodstuff under Regulation 510/2006 does not preclude maintenance of existing national protection or protection bilaterally extended to another member state for a different name for the same product, unless that name is an abbreviation or a part of any of the geographical indications protected at Community level for the same product [...].
The European Court of Justice is expected to issue its decision within approximately six months.
Jeremy Phillips, IP consultant to Olswang, London

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