The General Court delivers its ruling in another “Buds” case
On 22 January 2013, the General Court gave its ruling on the joined cases T‑225/06 RENV, T‑255/06 RENV, T‑257/06 RENV and T‑309/06 RENV, “Budějovický Budvar, národní podnik Vs. Anheuser-Busch LLC”, the presumably last battle in the so-called “battle of the buds”. The parties involved were Budějovický Budvar (Budvar), as applicant, OHIM and Anheuser-Busch LLC (party before the Board of Appeal of OHIM) as defendants. In 1996 Anheuser-Busch applied for 4 “BUD” Community trade marks (CTMs). One of them was a figurative trade mark featuring the element “Bud”, applied for goods in classes 16, 21, 25 and 32. The rest of the “Bud” applications were applied for goods and services in classes 32, 33, 35, 38, 41 y 42. When Budvar found out about these applications, opposed to them on the basis of a figurative Bud mark registered for all types of light and dark beer; the appellation origin Bud in respect of beer (registered under the Lisbon Agreement), effective in France, Italy and Portugal; and an Austrian appellation of origin Bud protected in Austria under a bilateral convention with the former state of Czechoslovakia. The Opposition Division partially upheld Budvar´s opposition regarding “restaurant, bar and pub services” claimed by Anheuser-Busch in its fourth application, as there was likelihood of confusion (given that the signs involved were identical, “Bud”). All the other grounds of opposition were dismissed, as it was held that Budvar failed to prove how the use of the mark applied for could in any way weaken the reputation of the appellation of origin “BUD” as the goods and services covered were different. The Board of Appeal dismissed Budvar´s appeal, as it was held that it didn’t furnish enough proof of use of the appellation of origin of “Bud” in Austria, France, Italy and Portugal, or of the fact that the holding of a prior right over an appellation of origin such as “Bud” granted Budvar a right in such a way as to prohibit others to use it in the course of trade as a trade mark in Austria and France. Budvar appealed the decision before the Court of Justice of the European Union. In its decision, the General Court ruled that Budvar had furnished enough proof of use to demonstrate the use of “Bud” in the course of trade, despite the fact “Bud” was used coupled with “strong” or “super strong” and never as a word element on its own. In this sense, the Court explained that for a sign “of mere local significance” to be considered used, it was sufficient that it was used in the course of trade, and in this concrete case there was no evidence that the word element “Bud” as used by Budvar referred to the commercial origin of the product more than to its geographical origin, at least regarding the French territory. Regarding the remaining applications, the General Court assessed on the evidence submitted that the “use in the course of trade of more than mere local significance” requirement was not satisfied by Budvar, and therefore it ruled against Budvar. The Court understood that the use of the sign in question amounted to a limited geographical area (3 french towns) and a very limited volume of products sold, reason why the Court ruled that it was not sufficient to satisfy the “use test” in France. Regarding Austria, figures also talked for themselves against Budvar, especially when taking into consideration the hectoliters destined for exportation. Budvar claimed as defense that a qualitative approach should be made, when assessing use of an appellation of origin, rather than a quantitative one. Such an argument did not prosper. In Salvador Ferrandis and Partners we believe the General Court was right in its decision. We consider it is a hard task to assess use of an appellation of origin especially when there is a fight in different countries, as in the case at hand. The final decision is according to law, and it is to be seen how in future cases such as this one the Courts will resolve.
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