UK: Seeing Double? Honest Concurrent Use Of The Budweiser Trademark

Last Updated: 3 August 2012
Article by Liane Bylett

Two companies have been using the "Budweiser" brand in the UK for decades. Liane Bylett in our Commercial Disputes Team looks at the latest battle over the "Budweiser" trademark concerning the issue of honest concurrent use. 

This case is a good example of how delay in taking action in respect of an identical trademark can impact upon your ability to challenge the registration, particularly in circumstances where there is little evident  likelihood of confusion. If two identical brands co-exist for a long period of time, with little or no impact on each other's business, then honest concurrent use may arise with both parties obtaining equal rights to use the mark. It is therefore very important to police your trademarks and IP to ensure that swift action can be taken.


American company, Anheuser-Busch Inc (AB), and Czech company, Budejovicky Budvar Narodni (BB), have both sold beer in the UK under the name "Budweiser" since the 1970s. Perhaps unsurprisingly there has been a long-standing legal wrangle between the parties over the trademark. Eventually, in 2000, the Court of Appeal held that both AB and BB were permitted to register "Budweiser" as a trademark in the UK because there was "honest concurrent use" of the mark by both companies i.e. both had been simultaneously using the name for a long period of time without any adverse effects.

However in 2005 AB applied for an order under Article 4(1)(a) of EU Directive 89/104 that BB's registration be declared invalid. The application was made on the basis that the marks / products are identical and AB's was an "earlier trademark" – AB's trademark application having been made in 1979, whilst BB's application was made in 1989. The Intellectual Property Office, and subsequently the High Court, declared that BB's trademark was invalid. BB appealed to the Court of Appeal.

The Court of Appeal referred a number of questions to the Court of Justice of the European Union, including:

"Does Article 4(1)(a) apply so as to enable the proprietor of an earlier mark to prevail even where there has been a long period of honest concurrent use of two identical trade marks for identical goods ... ?"

The Court of Justice of the European Union recently provided their response to the Court of Appeal's questions and the Court of Appeal applied their reasoning to the Budweiser case.

Key Elements of the Decision

The Court of Justice of the European Union said that the proper interpretation of the relevant law means that the owner of an earlier trade mark cannot obtain a declaration that an identical later trade mark designating identical goods is invalid in circumstances where there has been a "long period of honest concurrent use of those two trade marks" and that situation has not had (nor is liable to have) an adverse effect on the essential function of the trade mark, which is to guarantee the origin of the goods.

BB argued that the above guidance means that, due to the honest concurrent use of the mark, both AB and BB can prevent third parties from using the mark but cannot prevent one another from using it. However AB argued that it was able to show an "adverse effect" based on evidence of confusion used in earlier litigation between AB and BB, which would prevent a finding of honest concurrent use.

The Court of Appeal held that the evidence of confusion produced in previous cases was not sufficient. The Court of Appeal said that "these two brands have lived side by side for many years in different get-ups, prices and taste..." and the public have got used to the two brands co-existing. So, whilst some consumers will inevitably be confused, there are many consumers who will not be confused.

The Court of Justice of the European Union found that the circumstances of this dispute were exceptional and identified five factors to support this assertion. AB therefore tried to argue that the Court of Justice of the European Union's ruling was so limited that it was restricted to cases of "de minimis" (very minor) levels of confusion. The Court of Appeal rejected this interpretation, confirming that the decision did not mean that only "de minimis" levels of confusion are acceptable where there is honest concurrent use.

The Court of Appeal allowed BB's appeal and the declaration of invalidity of BB's trademark was overturned.


This case should serve as a timely reminder to all brand owners of the importance of policing your trademarks and IP rights. Action should be taken at the earliest possible opportunity, usually as soon as the application for registration of the identical mark is made, as honest concurrent use may otherwise prevent you doing so at a later stage. If you would like any advice on policing your trademark, please do not hesitate to contact us.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document. 

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.