Bavaria PGI v trade mark battle shifts in favour of the Dutch

You won't catch
the Advocate
General dressed
like this in court ...

The battle for BAVARIA as a beer trade mark continues. Today Advocate General Mazak gave his Opinion in Case C‑120/08 Bayerischer Brauerbund eV v Bavaria NV, a reference for a preliminary ruling by the Court of Justice of the European Union from the German Bundesgerichtshof.

Bayerischer Brauerbund is a German association formed to protect the common interests of Bavarian brewers. It has owned the registered collective trade marks ‘Genuine Bavarian Beer’ (since 1958), ‘Bayrisch Bier’ and ‘Bayerisches Bier’ (since 1968), as well as ‘Reinheitsgebot seit 1516 Bayrisches Bier’ (since 1985). Bavaria is a Dutch commercial brewer which trades internationally. Formerly called ‘Firma Gebroeders Swinkels’, the company began to use the word ‘Bavaria’ in 1925; this became part of its name in 1930. Bavaria owns several trade marks and figurative elements containing the word ‘Bavaria’. The registration dates include 1947, 1971, 1982, 1991, 1992 and 1995. Protection of some of those trade marks was refused in Germany in 1973, 1992 and 1993.

The name ‘Bayerisches Bier’ (in English, 'Bavarian Beer') is covered by bilateral agreements on the protection of geographical indications, appellations of origin and other geographic names between Germany and France, Greece, Italy, Switzerland and Sweden.

In September 1993 Bayerischer Brauerbund, in agreement with the associations Münchener Brauereien eV and Verband Bayerischer Ausfuhrbrauereien eV, applied to register ‘Bayerisches Bier’ as a protected geographical indication (PGI). in accordance with the ‘simplified’ procedure under Article 17 of Regulation 2081/92. This application was accepted in January 1994 and, after some fine-tuning, the final version of the specification was sent to the European Commission in 28 March 2000. Two draft regulations for registration of ‘Bayerisches Bier’ as a PGI were discussed on a number of occasions within the Regulatory Committee for geographical indications and appellations of origin but the Committee was unable to deliver an opinion within the prescribed period since it lacked the requisite majority. The Commission therefore converted its draft into a proposal for a regulation of the Council, which then adopted Regulation 1347/2001 registering ‘Bayerisches Bier’ as a PGI.

Relying on Article 14(1) of Regulation 510/2006 on GI protection, which states that registration of a trade mark shall be refused if the application is submitted after the date of submission of the registration application of the PGI to the Commission (rather than its date of publication, under Article 14 of the previous Regulation, 2081/92), Bayerischer Brauerbund then brought actions in Germany and other countries, seeking an order requiring Bavaria to consent to the removal of an international trade mark containing the word BAVARIA which had priority of 1995 -- after the application was made but before it was published and crystallised into a PGI. The Landgericht München upheld this action and an appeal was dismissed by the Oberlandesgericht München. A further appeal was made to the Bundesgerichtshof, which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

"(1) Does Article 14(1) of Regulation ... 510/2006 [being the current EU legislation on GI protection, repealing and replacing Regulation 2081/92] apply in the case where the protected indication has been validly registered in accordance with the simplified procedure under Article 17 of Regulation ... 2081/92 ... on the protection of geographical indications and designations of origin for agricultural products and foodstuffs?

(2) (a) If the answer to Question 1 is in the affirmative, what date should be taken as the basis for determining the classification in time of the protected geographical indication for the purposes of Article 14(1) of Regulation ... 510/2006?

(b) If the answer to Question 1 is in the negative, what provision governs the conflict between a geographical indication validly registered in accordance with the simplified procedure under Article 17 of Regulation ... 2081/92 and a trade mark, and what determines the classification in time of the protected geographical indication?

(3) May the national provisions on the protection of geographical designations be applied in the event that the indication “Bayerisches Bier” fulfils the conditions for registration under Regulation ...  2081/92 and Regulation ... 510/2006, but Regulation ... 1347/2001 is invalid?"

The Advocate General's position was as follows:

"1. Article 14(1) of Council Regulation ... 510/2006 ... is not applicable in a case where a protected indication of origin has been validly registered in accordance with the simplified procedure provided for in Article 17 of Council Regulation ... 2081/92 ....

2. Regulation ... 2081/92 is to be interpreted as meaning that the date of the publication of the registration is the material date for the classification in time, for the purposes of Article 14(1) of that regulation, of a protected geographical indication which has been registered in accordance with the simplified procedure under Article 17 of that regulation".

This looks more good news for the Dutch Bavaria defendants -- if (as the Kat thinks likely) the Court accepts the Advocate General's analysis.

Earlier litigation over German v Dutch Bavaria beers here
Bavaria Babes here
Bavaria's favourite beer celebration here