Inbev loses Budweiser CTM appeal

Just when the IPKat thought it was safe to redirect his lynx-like ears away from Luxembourg and towards the ball-by-ball commentary on the cricket match between England and Pakistan, the Court of Justice -- which has been quite quiet over the past few days -- sputtered into life again with a ruling in Case C‑214/09 P, Anheuser-Busch Inc. v Office for Harmonisation in the Internal Market, Budějovický Budvar, národní podnik, the final appeal in a minor part of the larger and apparently eternal war between the formerly American Budweiser (now European-ly Belgian) and its Czech mate Budvar.

In its ruling the Court of Justice, affirming the decision of the Court of First Instance in March 2009 (noted here), said AB Inbev (the AB being 'Anheuser-Busch') was not entitled to register the word BUDWEISER as a Community trade mark for ‘beer, ale, porter, malted alcoholic and non‑alcoholic beverages’ in Class 32. The original application, filed on 1 April 1996 (the day the Community trade mark system commenced), was opposed by Budvar on the basis of (i) its earlier international word mark BUDWEISER, registered for ‘beer of any kind’, with effect in Germany, Austria, Benelux and Italy; (ii) an international figurative mark including the words ‘Budweiser Budvar’, registered for ‘malt’ and ‘beer’, with effect in Austria, Benelux, France and Italy; (iii) an international figurative mark including the words ‘Budweiser Budvar’, registered for ‘beers’, with effect in Germany, Austria, Benelux, France and Italy, and (iv) on a number of appellations of origin including the word ‘Budweiser’.

The Court of Justice today agreed that Budvar's earlier rights to the name in Germany and Austria, where genuine use was sufficiently evidenced, were a sufficient basis upon which to base a successful opposition. AB Inbev still holds trade mark rights for the words BUD or BUDWEISER in 23 of the 27 EU countries, and this decision has no effect on them.

The Court also clarified a legal-procedural issue (at para.69), ruling that the lower court did not err in law (i) when it held that OHIM was entitled to require proof that an earlier mark had been renewed, where that mark was due to expire after the notice of opposition was filed and (ii) when it held that an opposing party was not required to provide such proof on its own initiative.

Campaign for real ale here

Sources: Court of Justice ruling; press release from Stephanie Bodoni (Bloomberg).