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Budvar beats Anheuser-Busch in latest Budweiser battle

Euro court defenestrates globo grog firm's case

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US brewer Anheuser-Busch has lost its attempt to register the word 'budweiser' as a trade mark for beer in the European Union. Czech brewer Budejovicky Budvar has won the right to market its beers under the name.

The Court of First Instance (CFI) of the EU has ruled in Budvar's favour after a number of decisions and appeals.

Anheuser-Busch applied for an EU-wide trade mark in 1996 but Budvar opposed the application, saying that it already had trade marks for that term in relation to beer for Germany, Austria, Benelux, France and Italy.

That opposition was filed in 1999 and in 2004 the body responsible for EU-wide trade marks, the Office for Harmonisation in the Internal Market (Trade Marks and Designs), known as OHIM, sided with Budvar, saying that there was a risk of confusion in Austria and France over Budvar's earlier marks and the one applied for by Anheuser-Busch.

Anheuser-Busch won an appeal against that decision and OHIM's opposition division was asked to rule again on the matter. It did, this time taking into account extra documents submitted by Budvar in relation to an earlier trade mark.

Anheuser-Busch objected to the later submission of documents.

"Anheuser-Busch claims that, if the Board of Appeal had wished to take into consideration the earlier international word mark … it ought to have informed Anheuser-Busch thereof and afforded it the opportunity of expressing a view in that regard. In omitting to do so, the Board of Appeal failed to fulfil its obligations," said the CFI's ruling. "OHIM contends that Anheuser-Busch was in a position to submit its observations on the earlier international word mark."

The CFI found that the earlier trade mark had in fact been mentioned and discussed in documents involved in the process before, and that this gave Anheuser-Busch the opportunity to deal with that trade mark if it had wanted to.

Anheuser-Busch said that documents related to the earlier trade mark were filed up to two years too late with OHIM.

The CFI said that OHIM had discretion in such circumstances.

"[The law] confers a discretion upon OHIM as to whether or not to take account of evidence produced after the expiry of a time-limit," it said.

The CFI ruling said that OHIM Board of Appeal rulings contained reasoning aimed specifically at justifying its consideration of documents that were submitted late.

"The Board of Appeal found that the documents concerned were received 35 months before the Opposition Division adopted its decision," said the ruling. "The Opposition Division thus had ample opportunity to take them into consideration and the trade mark applicant to comment on their relevance."

Anheuser-Busch also claimed that the evidence produced by Budvar of its actual use of its 'Budweiser' trade mark was not good enough.

The Court outlined what is needed to show genuine use of a trade mark.

"There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the registration," the Court said.

Budvar had submitted copies of adverts in Germany and Austria and invoices for customers in Germany and Austria for sales of the beer. The CFI agreed with the Board of Appeal "the evidence which Budvar produced was clearly sufficient to prove genuine use of the earlier international word mark 'Budweiser'".

Anheuser-Busch was therefore denied the right to an EU-wide trade mark, but the ruling will not affect the trade marks which it has in individual countries within the EU.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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