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Tuesday, 29 June 2004


Today Advocate General Tizzano delivered in opinion in Case C-245/02 Anheuser-Busch. Sadly, the decision is only available in Italian, German, Portuguese and Swedish. According the the ECJ Diary, the following issues were raised in the opinion:

Interpretation of Community law concerning trade marks - Whether the TRIPs Agreement applies to an alleged infringement commenced before the entry into force of the Agreement and continuing after that date - Interpretation of Article 16 of the TRIPs Agreement - Collision of a trade mark and a trade name - Interpretation of the reference to existing prior rights - Whether protection of the trade name under Article 8 of the Paris Convention included and if so under what conditions - "Budweiser" and "Bud"


Luca QM IP LLM said...

Hey Cat ! Here is the italian keen on beer ( but not a beerhead!) , I translated the conclusion, that goes more or less like this:


126. In the light of the preceding considerations, I propose to the Court to answer the preliminary questions raised by Korkein Oikeus in the following terms:
1) In case of conflict between a mark and a sign that allegedly infringes such mark, the provisions of the TRIPS agreement apply to the question of priority of one of the two rights’ legal grounds also when the conflict arose in a moment preceding the entry into force of the TRIPS agreement, provided the alleged infringement continued beyond the date the agreement entered into force in the Community and its member states;
2) a company name may constitute a sign conflicting with a registered trade mark, whose use can be restricted by the owner of the latter as provided by art.16 of TRIPS and art.5 of, n.1 of EC Dir. 89/104, when it is used with the function, typical of the trade mark, of establishing a link between the goods and the company that manufactures or distributes such goods, and is likely to generate confusion among consumers, preventing them from easily understand whether certain goods come from the owner of the company (name) and the owner of the registered trade mark. The risk of confusion is presumed in case of identity of both signs and products; otherwise, such risk has to be subject of a global assessment of the specific circumstances by the national court.
3) a company name may constitute an “existing” previous right in the meaning of paragraph 3 of art.16 of TRIPS, only if it has been used as a mark;
4) in such case, the conflict between a company name and a registered trade mark has to be settled in accordance with anteriority criteria; such anteriority has to be established in relation to the moment when, in the Country where protection is sought, the sign in which the company name consists can be considered “well known”, or when, as consequence of use and in accordance to national legislation, the rights to a sign used as a mark are acquired.

However I have to say that Birra Menabrea from Biella (Piemonte , North-Western Italy) is much better than Budweiser and is three-times world champion!

Ciao !

unixlinux said...

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