Bud again, as trade mark dispute overspills again into GI war

Those Budweiser disputes just won't go away. On 16 December the Bud appellation scored something of a victory before the Court of First Instance in four Community trade mark opposition appeals in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar, národní podnik v Office for Harmonisation in the Internal Market, Anheuser-Busch, Inc (see IPKat post here for a relatively intelligible account).  

Right: bearing in mind the recent surge of ECJ litigation involving German beer names, Europe's highest court has just substituted for the Advocate General's robes an altogether more appropriate garb

Today in Case C‑478/07  Budějovický Budvar National Corporation v Rudolf Ammersin GmbH, a reference for a preliminary ruling from the Handelsgericht Wien, Austria, the fog that has surrounded the status of Bud scarcely lifted, though Advocate General Damaso Ruiz-Jarabo Colomer has delivered a mighty 138-paragraph Opinion that has sought to analyse and tidy up some of the issues.

In short (thanks to Bloomberg's Stephanie Bodoni), Budvar was dealt a potential setback in its battle with Anheuser-Busch InBev NV for the rights to the Bud and Budweiser names: according to the Advocate General, Budvar may keep the rights in Austria only for a name that is (i) a simple geographical indication, (ii) which refers to a region only and (iii) Czech consumers can be shown to associate the name with beer from a specific region.

Budvar says it owns the rights because its beer comes from Ceske Budejovice, or Budweis in German. Budvar claims that Bud has been a national geographical indication since 1975 in the Czech Republic and that, in 1976, this protection was extended by a bilateral agreement to Austria.  Anheuser-Busch InBev, which is fighting to lift an injunction that has prevented it from selling beer under the name American Bud in Austria since 1999, says it owns the rights to Bud or Budweiser in 23 out of the 27 EU countries. The brewers are said to be involved in more than 20 court cases and almost 60 administrative proceedings worldwide.

To quote the words of the Advocate General himself:

(1) The requirements defined by the Court of Justice in its judgment of 18 November 2003 in Case C‑216/01 Budějovický Budvar for the protection as a geographical indication of a designation which in the country of origin is the name neither of a place nor of a region [ie Bud] to be compatible with Article 28 EC:

(1.1) mean that the name must be sufficiently clear to call to mind a product and its origin;

(1.2) are not three different requirements which must be satisfied separately;

(1.3) do not require a consumer survey or define the result which has to be obtained in order to justify protection;

(1.4) do not mean that, in practice, the name must be used in the country of origin as a geographical indication by more than one undertaking and says nothing about its use as a trade mark by a single undertaking.

(2) When a designation has not been notified to the Commission under Council Regulation ... 510/2006 ... national protection in force or protection bilaterally extended to another Member State becomes invalid if the designation is a qualified geographical indication under the law of the State of origin, having regard to the fact that Regulation No 510/2006 is exclusive as regards the indications within its scope of application.

(3) The fact that the Treaty of Accession between the Member States of the European Union and a new Member State introduces protection for various qualified geographical indications for a foodstuff under Regulation No 510/2006 does not preclude maintenance of existing national protection or protection bilaterally extended to another Member State for a different name for the same product, unless that name is an abbreviation or a part of any of the geographical indications protected at Community level for the same product. Regulation No 510/2006 does not have exclusive effect to that extent, without prejudice to the response to the second question referred".

A ruling may be expected in around six months time, unless the European Court of Justice is so excited about hearing another Bud/weis case that its judges drop everything else ...