Supreme Court refers questions to ECJ in Bavarian beer case

The German Supreme Court has referred several questions to the European Court of Justice (ECJ) for a preliminary ruling (Case I ZR 69/04, February 14 2008). The case involved the relationship between:

• the geographical indication (GI) 'Bayerisches Bier' (German for 'Bavarian beer'), which was registered in 2001 under the simplified procedure established by Article 17 of Council Regulation 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs; and
  
  
• the international trademark registration for BAVARIA HOLLAND BEER designating Germany.

In 1994 the Bayerische Brauerbund eV (the Bavarian Brewery Association) applied for the registration of 'Bayerisches Bier' as a geographical designation under the regulation. The registration procedure was completed in 2001. Brewery Bavaria NV, a Dutch brewery, is the owner of the trademark BAVARIA HOLLAND BEER for beer, which has a priority date of 1995. The association sought the cancellation of the trademark BAVARIA HOLLAND BEER on the grounds that it infringed the GI 'Bayerisches Bier'.

The parties disagreed on the validity of Council Regulation 2081/92. This issue is already the subject of proceedings between the same parties before the ECJ following a reference for a preliminary ruling by the Turin Court of Appeal (Case C-343/07).

The German Supreme Court thus referred the following questions to the ECJ:

• Is the regulation valid and, if not, can the association claim protection under national law?
  
  
• What is the priority date of a GI registered under the simplified procedure? In particular, the court sought to know whether the date of application or the date of registration of the GI is relevant in that respect, given that only the registration date is published under the simplified procedure.
  
  
• How should the translation of (or an allusion to) a GI be treated where there is no confusion as to the origin of the goods? For example, in the case at hand, beer sold under the BAVARIA HOLLAND BEER mark clearly orginates from the Netherlands, not Bavaria.

It is expected that the ECJ will consolidate the German and Italian references.

Friederike Bahr, Beiten Burkhardt, Munich