Brussels, 26/03/2009 (Agence Europe) - In a ruling on Wednesday 25 March (Case T-191/07), the Court of First Instance of the European Communities confirmed the decision by the Office for Harmonisation in the Internal Market (OHIM) not to register the term “Budweiser” as a Community trade mark, in favour of the American brewer, Anheuser-Busch, especially for beer. The commercial use of the term “Budweiser” has in fact already been attributed to the Czech brewer Budejovicky Budvar in Germany and Austria.
In 1996, the American brewery Anheuser-Busch applied to the OHIM for registration of the word sign “Budweiser” as a Community trade mark for the following goods: “beer, ale, porter, malted alcoholic and non-alcoholic beverages”. The Czech brewery Budejovicky Budvar brought opposition proceedings against such registration in respect of all the goods applied for. In support of its opposition, Budejovicky Budvar relied on earlier international trade marks and appellations of origin including the world “Budweiser”, registered for beer. The Budweiser Budvar, also known as Budweiser Czechvar, has been brewed since 1895 by the company Budejovicky Budvar in the town of Èeské Budejovice (Budweis in German) in the Czech Republic.
OHIM rejected Anheuser-Busch's application for a Community trade mark on the grounds that the trade mark applied for was identical to the earlier international word mark, Budweiser, protected in particular in Germany and Austria. OHIM found that the goods indicated in the American brewery's application were essentially identical to the goods “beer of any kind” covered by the earlier trade mark. OHIM also upheld the Czech brewery's opposition for malted non-alcoholic beverages, in view of the identity of the marks and the obvious similarities of the goods concerned.
Anheuser-Busch brought an action before the Court of First Instance against the OHIM decision. In Wednesday's ruling, the Court of First Instance finds, first, that Anheuser-Busch was in a position to put forward its observations on the validity of the earlier trade mark during the proceedings before OHIM and that, accordingly, its right to be heard was not infringed. It notes in that regard that Budejovicky Budvar duly proved the validity of that trade mark during the proceedings before OHIM. In addition, the Court of First Instance rejects Anheuser-Busch's argument that OHIM should not have taken account of documents furnished late by Budejovicky Budvar in support of its opposition. OHIM has a wide discretion to decide whether or not to take such documents into consideration.
Next, the Court of First Instance points out that Budejovicky Budvar submitted advertisements and invoices bearing the earlier trade mark, addressed to customers in Germany and Austria, with a view to marketing the beer during the five years preceding the publication of Anheuser-Busch's application for a Community trade mark. The Court of First Instance states that those advertisements and invoices constitute proof of genuine use by the Czech brewery of the earlier trade mark. Accordingly, Budejovicky Budvar was entitled to rely on that trade mark for the purpose of opposing registration, inter alia for beer, of the trade mark applied for by Anheuser-Busch.
Lastly, in respect of malted non-alcoholic beverages, the Court of First Instance states that, as those beverages are similar to the goods “beer of any kind” covered by the earlier trade mark, Anheuser-Busch's application for registration must also be rejected in their regard. In that context, the Court of First Instance points out that “beer of any kind” includes non-alcoholic beer, which is, by definition, a malted non-alcoholic beverage. According to the Court of First Instance, such similarity gives rise to a likelihood of confusion on the part of German and Austrian consumers, since they may believe that malted non-alcoholic beverages sold under the trade mark Budweiser come from the same source as beer sold under the trade mark Budweiser. For all these reasons, the Court dismisses Anheuser-Busch's action in its entirely. (O.L./transl.jl)