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Anheuser-Busch Loses 'Budweiser' as a Community trademark

Written by Waheedan Jariwalla on 31 March 2009

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A European Union court on Wednesday upheld a ruling denying Anheuser-Busch Inbev the right to register the Budweiser name as a trade mark in the EU.

Background to the dispute

On 1 April 1996, Anheuser Busch, Inc. lodged an application for registration of the word BUDWEISER as a Community trademark with OHIM.

The goods in respect of which registration was sought were within class 32 for 'beer, ale, porter, malted alcoholic and non alcoholic beverages'. The application for registration of the Community trade mark was published in Community Trade Marks Bulletin No 50/99 of 28 June 1999.

On 28 September 1999, Budejovicky Budvar, narodni podnik, ('Budvar') brought opposition proceedings against the registration of the mark applied for in respect of all goods specified in the application for registration.

In support of its opposition, Budvar relied, first, under Article 8(1)(a) and (b) of Regulation No 40/94, on:

>international word mark BUDWEISER (R 238 203), registered for 'beer of any kind', with effect in Germany, Austria, Benelux and Italy;

>international figurative mark (No 674 530), registered for 'malt' and 'beer', with effect in Austria, Benelux, France and Italy;

>international figurative mark (No 614 536), registered for 'beers', with effect in Germany, Austria, Benelux, France and Italy.

Budvar relied, second, under Article 8(4) of Regulation No 40/94, on a number of appellations of origin including the word 'Budweiser'.

By a first decision of 10 June 2004, the Opposition Division upheld the opposition filed by Budvar and, consequently, rejected the application for the Community trade mark concerned. The Opposition Division essentially considered that there was a likelihood of confusion in Austria and France between the mark applied for and the earlier international figurative mark No 674 530.

On 23 June 2004, Anheuser Busch appealed, pursuant to Articles 57 to 62 of Regulation No 40/94, against the decision of the Opposition Division.

By decision of 11 July 2005 (Case R 509/2004-2), the Second Board of Appeal of OHIM upheld Anheuser Busch's appeal. The Board of Appeal was of the view that the Opposition Division had erred in considering that the earlier international figurative mark No 674 530 was protected in Austria and France from 5 December 1960, whereas it was protected, in those countries, from 19 May 1997, that is, from a date later than that of the application for the registration of the Community trade mark concerned. The Board of Appeal referred the case back to the Opposition Division.

By a second decision of 22 December 2005, the Opposition Division once again upheld the opposition filed by Budvar and, accordingly, rejected the application for the Community trade mark concerned.

The Opposition Division considered first of all that the proof of use of the earlier international word mark BUDWEISER (R 238 203) was insufficient and therefore chose to limit its examination to a comparison between the mark applied for and the earlier international figurative mark No 614 536, in relation to which it agreed to take account of the documents produced by Budvar in support of its opposition.

In that regard, the Opposition Division considered, essentially, that there was a likelihood of confusion in Germany, Austria, Benelux, France and Italy between the mark applied for and the earlier international figurative mark No 614 536.

On 13 February 2006, Anheuser Busch filed an appeal with OHIM, pursuant to Articles 57 to 62 of Regulation No 40/94, against the second decision of the Opposition Division.

By decision of 20 March 2007 (Case R 299/2006 2) ('the contested decision), notified to Anheuser‑Busch on 22 March 2007, the Second Board of Appeal of OHIM dismissed the appeal.

The Court of First Instance upheld OHIM's decision not to register the word 'Budweiser' as a Community trademark, inter alia for beer, for the American brewer, Anheuser-Busch.

Anheuser Busch was also ordered to pay all costs, as applied for by OHIM and Budvar.

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