BUDDY CAN YOU SPARE A BIT? LATEST IP REVIEW

Buddy can you spare a Bit?

The Court of First Instance (CFI) of the European Communities dismissed Bitburger's appeal in the keenly-contested non-contest in Joined Cases T‑350/04 to T‑352/04, Bitburger Brauerei Th. Simon GmbH v OHIM, Anheuser-Busch, Inc, another case which, in the IPKat's opinion, should never have been allowed to waste the CFI's time.

Anheuser-Busch applied to register as Community trade marks (CTMs) for beer (i) the word BUD and (ii) the two figurative signs that appear at the top of this post (for which registration in Classes 16 and 25 were also made, to cover paper and clothing). Bitburger opposed, citing a selection of earlier German and CTM marks and applications that featured the word "Bit" (all depicted here). Bitburger considered that, in view of the similarity/identity of the marks and the similarity/identity of the brewers' respective products, there was a likelihood of confusion of the relevant public. A further allegation was that, given the reputation of the Bitburger marks, Anheuser-Busch's use of its own marks, without due cause, would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

The Opposition Division rejected Bitburger's opposition. First, it transpired that some of its allegedly earlier marks had the same filing date as Anheuser-Busch's BUD sign - 1 April 1996 - and were not therefore anterior. Apart from that, evidence of use of Bitburger's marks indicated that they were used for only a narrow selection of goods. Bearing that in mind, and also the fact that Bitburger's marks were not similar to Anheuser-Busch's, the opposition could not succeed even if Bitburger's marks were highly distinctive in Germany on account of their use. The Board of Appeal agreed and Bitburger then appealed to the CFI.

The CFI dismissed the appeal. This is not so much a case of "Roll out the barrel", the IPKat says, as an example of an opponent scraping the bottom of the barrel for arguments to justify the unjustifiable. Merpel agrees. Given the degree of loyalty that most beer-drinkers show towards their favourite brands, it would take several litres of either party's product before their brains would be so befuddled as to confuse the one with the other.

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