BUDĚJOVICKÝ BUDVAR registrations upheld by Board of Appeal

In two cases opposing Anheuser-Busch and Budějovický Budvar (BB), the Board of Appeal of the Office for Harmonization in the Internal Market (OHIM) has upheld BB's registrations of marks that include the words 'Budějovický Budvar' (Cases R 27/2002-2 and R 320/2002-2).

BB applied to register as Community trademarks a figurative sign containing the words 'Budějovický Budvar' and the words alone in cursive script. Both applications were filed mainly for beer. Anheuser-Busch opposed both applications on the basis of its Community word mark BUD, also registered mainly for beer.

The Opposition Division rejected both oppositions. It reasoned that the BB and Anheuser-Busch trademarks are so different that even the "proverbial moron in a hurry" would not confuse them. It added that even if it were proved that consumers abbreviate BB's trademark to 'Bud', there would be no danger of confusion because consumers will normally select the goods from the shelf of a supermarket. The visual differences would therefore be sufficient to prevent confusion. Anheuser-Busch appealed.

The Board of Appeal upheld the Opposition Division's decision, finding that there was no likelihood of confusion between the BB and Anheuser-Busch marks. Applying the analysis of the European Court of Justice (ECJ) in SABEL BV v Puma AG, the board stated that the likelihood of confusion must be determined by means of a global appraisal of the visual, phonetic and conceptual similarities between the marks, bearing in mind in particular their distinctive and dominant components.

On the basis of the ECJ judgment in Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc, the board found that the similarities between the opposing parties' marks and the similarities between the related goods are independent criteria in the sense that a lesser degree of similarity between the goods may be offset by a greater degree of similarity between the marks, and vice versa. The board found that the goods covered by the contested applications are identical.

However, the board found that the visual differences between the marks are obvious. Anheuser-Busch's mark consists of the monosyllabic, three-letter word 'Bud' written in ordinary script. BB's marks consist of two words containing a total of 17 letters and seven syllables. Two of the letters have accents that are typical of the Czech language, the words are written in a cursive script and one word appears below the other. A line, decreasing in thickness from left to right, appears beneath the upper word.

Furthermore the board found that there is considerable phonetic difference between 'Bud' and 'Budějovický Budvar'. The board rejected the argument that consumers would abbreviate BB's mark to BUD, finding that this is only likely to happen in the case of consumers who are familiar with the long-running dispute between the parties over the trademark BUDWEISER: Anheuser-Busch filed evidence that some consumers in the United Kingdom refer to BB's beer as 'Czech Bud' and to Anheuser-Busch's beer as 'American Bud'. The board reasoned that consumers who are aware of the dispute are particularly unlikely to confuse the marks at issue.

Finally, the board found that the marks are not conceptually similar. 'Bud' refers in English to an unopened flower and may also be thought of as a contraction of the US English term 'buddy', meaning friend. In Swedish, it means 'messenger' or 'order'. The board was not aware of any meaning that it might have in other EU languages. On the other hand, 'Budějovický Budvar' will strike most EU consumers as a name in a Slavonic language and some might associate it with the Czech town of Ceské Budějovice, also known in German, according to BB, as Budweis.

Ladislav Jakl, Patentservis Praha, Prague