budweiser-beer
22 January 2013Trademarks

General Court backs AB InBev in EU Bud dispute

The General Court of the EU has ruled today that beer-manufacturer AB InBev can register its Bud trademark across the EU, the latest decision in a long-running dispute with Czech rival Budějovický Budvar.

Budvar’s appeals against its US rival’s Community trademark registrations were dismissed because the company failed to “significantly” show that it used Bud as an “appellation of origin”, a sign specifying a product’s geographical origin, in France and Austria.

The court said Budvar gave the Office for Harmonization in the Internal Market (OHIM) insufficient evidence to show use—before the date of AB InBev’s first of four applications in July 1996—of an earlier sign in the “course of trade of more than mere local significance”.

Though the Czech brewery handed OHIM invoices to show use in France, the court said they covered only a very limited volume of products and the relevant deliveries were limited to three towns in France.

The court added that documents showing actual use of the mark in Austria related to very low sales, and that sales outside Vienna represented negligible volumes.

Significant use of such a geographical mark in a substantial part of a member state could have prevented a Community registration.

A spokesman for Anheuser-Busch said in a statement that the company was extremely pleased with the ruling. “While there are only a few countries in Europe where we do not have a registration for Bud or Budweiser, this registration will fill in those few remaining gaps.” It added that the company intends to apply for Bud as a Community mark this year.

Budvar was not immediately available for comment. OHIM said it had no comment to make on the ruling.

Jens Matthes, partner at Allen & Overy in Düsseldorf, said the lesson to learn from the case was “register your trademark rather than rely on showing use of a geographical indicator. If you do rely on use, you have to closely document it—have a good archive to show how your products are marketed. Ten or 20 years later in court, you can show that you were using products to a certain extent”.

He said Budvar may not have registered a mark because Czechoslovakia was behind the Iron Curtain in Europe until 1991, and it may have been difficult to acquire rights until then.

From April 1996 to July 2000, AB InBev (then, Anheuser-Busch) applied for four Bud marks at OHIM, prompting Budvar to file four oppositions, arguing that Bud was an appellation of origin in several EU countries.

In July 2004, OHIM upheld Budvar’s opposition against the application governing ‘restaurant, bar and pub services’, but later dismissed the three other appeals covering other classes. Budvar filed further appeals but in 2006 OHIM’s second board of appeal rejected them again.

Then, in June 2006, OHIM allowed Anheuser-Busch’s appeal against the July 2004 decision and dismissed Budvar’s opposition in its entirety. OHIM said the evidence of the use of the appellation of origin Bud in Austria, France, Italy and Portugal produced by the Czech firm was insufficient.

Budvar contested the decisions at the General Court, which annulled the decisions in December 2008. Anheuser-Busch appealed to the Court of Justice of the EU (CJEU). In March 2011 the CJEU found that a geographical indication protected in a member state could prevent registration of a Community trademark only if it was used in a significant manner in the course of trade in a substantial part of the territory of that state. It handed the case back to the General Court for further review.

The General Court was left to examine whether the use by Budvar of the appellation of origin enabled it to oppose the registration applied for by AB InBev .

Budvar can appeal to the CJEU within two months of today’s decision.

In better news for Budvar, the UK Supreme Court ruled on January 8 that the company and AB InBev can both use the Budweiser trademark in the country. The companies have been locked in many trademark disputes for more than 100 years.

Matthes said: “Let’s see if today's ruling is the final chapter in this war. At a certain point in time it doesn’t make sense to continue litigating”

The ruling is available here.

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