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Court of Appeal decision in Budweiser trademark case
The Court of Appeal has recently ruled against the US brewer, Anheuser-Busch Inc, in its attempt to prevent its Czech rival, Budejovicky Budvar Natodni Podnik, of its right to use the ‘Budweiser’ name in the UK.
Despite a long standing history of co-existence, Anheuser-Busch sought to invalidate Budvar’s ‘Budweiser’ trade mark on the grounds that the American company had registered their trade mark in the UK in 1976, whereas their Czech competitors did not apply for registration until 1989.
Brand identity and loyalty is a highly valuable commercial tool and this has been a lengthy litigation. Both companies were given permission by the Court of Appeal in 2000 to simultaneously register the ‘Budweiser’ trademark in the UK. In September 2011 the Court of Appeal then sought clarification from the Court of Justice of the European Union, who found in favour of Budvar.
The Court of Appeal judgment has followed suit and allowed Budvar to maintain its trade mark registration in the UK.
So, do you know your Budweiser from your, well, Budweiser?
This is an interesting case where two marks have been registered in respect of the same class of product. Where the same mark is used in respect of the same goods, a key consideration is the history of use. As is evident from the Judgment in this case, the question must also be asked, is there an adverse effect on the essential function of the trademark, which is to guarantee to consumers the origin of the goods?
A key factor acknowledged in the Court of Appeal judgment is that, although the names may be the same in this case, the beers are not. Their taste, price and packaging have always been different. Furthermore, the brands have each been marketing their beers under the sign ‘Budweiser’ or under a trade mark including that sign for almost 30 years prior to the registration of the marks concerned in this case.
The two brands have stood alongside each other in honest concurrent use of the ‘Budweiser’ name for a consideration period of time. In the circumstances, the American brewer was unable to prove an adverse effect.
This is not therefore a case of (excuse the pun) first come, first served. As a result of the recent judgment, both ‘Budweiser’ brands will maintain their presence in the UK market.
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