In a judgment that could put an end to an ongoing trade mark battle which has lasted for more than 10 years, the General Court of the European Union ("GC", previously called Court of First Instance) decided on 22 January 2013 to uphold the registration of the sign "BUD" as a Community Trade Mark ("CTM") by AB InBev for beers and other products. The case at hand relates to the long-running rife between the world's largest beer brewer Anheuser-Busch InBev ("AB InBev") and the Czech brewer Budějovický Budvar ("Budvar")
This was the second time that the GC has dealt with this case, as the case was referred back to it after the Court of Justice of the European Union ("ECJ") had overturned the GC's earlier judgment handed down on 16 December 2008 (See, VBB on Belgian Business Law, Volume 2008, No 12, p. 11, available at www.vbb.com). The 2008 GC decision had overturned decisions of the Office for Harmonisation of the Internal Market ("OHIM") in three cases rejecting Budvar's oppositions to the registration of the sign "BUD" as a CTM. The OHIM had found, in particular, that the evidence of the use of the appellation of origin "BUD" in Austria, France, Italy and Portugal produced by the Czech firm was insufficient. This decision was overturned by the GC judgment of 2008 which held that OHIM erred in law by adopting a wrong definition of appellation of origin and by referring to national judgments that OHIM erroneously had held to be final. Moreover, the GC had considered that proof of use of the CTM in the course of trade is sufficient, and that, accordingly, Budvar provided sufficient proof of use in the course of trade in France and Austria.
As expected, AB InBev appealed against the GC's judgment to the ECJ, which partially set aside the GC's judgment, as it found that the GC had made three errors of law when interpreting the conditions laid down in Article 8(4) of Regulation no. 40/94 on Community Trade mark. In particular, the ECJ maintained that, in order to be capable of preventing registration of a new sign, the sign upon which the opposition is based must actually be used in a significant manner in the course of trade in a substantial part of the territory in which it is protected (i.e., the opposing party must establish more than mere local significance). Use in the course of trade must also be assessed separately for each of the territories in which the sign is protected (See, VBB on Belgian Business Law, Volume 2011, No. 4, p. 10, available at www.vbb.com).
As the state of the proceedings did not permit the ECJ to adopt a final judgment, the ECJ referred the case back to the GC to decide the case on the merits.
The GC thus had to examine, for the second time, whether the use by Budvar of the appellation of origin "BUD" enabled it to oppose the registration applied for by AB InBev, but this time, in the light of the judgment on appeal delivered by the ECJ.
As the appeal before the ECJ is limited to points of law, it did not set aside the factual findings of the 2008 GC decision. For instance, the GC had accepted the validity of Budvar's registrations of the sign "BUD" as appellation of origin under the Lisbon agreement. In addition, the ECJ had not overturned the GC's finding that the words "used in the course of trade" were not to be understood as referring to genuine use.
In its judgment of 22 January 2013, the GC held that Budvar had failed to produce before OHIM any item of evidence capable of showing the use - before the date of filing of AB InBev's application for a CTM - of an earlier sign in the course of trade of more than mere local significance.
In addition, the GC rejected evidence based on invoices produced before OHIM that postdated the filing of AB InBev's application for a CTM, and found that the only invoices showing the use of the appellation "BUD" before the date of filing related to a very limited territory or volume of products. In France, the relevant deliveries were limited to three cities at most and, in Austria, the invoices related to sales that were very low in terms both of volume and turnover.
Therefore, the GC concluded that the condition of use in the course of trade of a sign of more than mere local significance is not satisfied as regards either the French or Austrian territories. Under those circumstances, the GC dismissed the actions brought by Budvar in their entirety.
This confirms the validity of the registration of the sign "BUD" as a CTM by AB InBev and rejects Budvar's opposition based on its appellation of origin as Budvar failed to demonstrate significant use of this sign.
It seems that Budvar is now running out of arguments in opposing the validity of AB InBev's "BUD" CTM, and although further cancellation proceedings are technically possible, this may well have been the final episode of this prolonged saga.
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