Proceedings that had been pending for 12 years have finally concluded, before the Austrian Supreme Court (Oberster Gerichtshof; OGH).

Background

In 1999, the Czech brewery Budweiser Budvar National Corporation was granted a preliminary injunction by the Commercial Court Vienna prohibiting the sale or advertising of beer branded “Bud” or “American Bud”. This decision was confirmed by the Vienna Higher Court and then by the OGH. In parallel proceedings before the Salzburg Regional Court, a preliminary injunction had also been issued.

In the main proceedings, the Vienna Commercial Court requested a preliminary ruling of the European Court of Justice (ECJ). Several difficult legal questions in the field of International Law, Trademark Law, Unfair Competition Law, and European Community Law, in particular concerning the protection of geographic indications and appellations of origin, had been subject to these proceedings. During the proceedings, the ECJ issued two decisions and the OGH three (including the final decision).

Decisive ECJ decision

The ECJ decision of 8 September 2009 (Case C-478/07) was finally decisive. The ECJ ruled that Regulation (EC) 510/2006 established a unified and comprehensive protection regime for geographical indications and appellations of origin. National protection thus could not exist outside of the Community protection. The protection requires that the member states notify the geographical indications and appellations of origin according to Regulation (EC) 510/2006. For the new member states that joined the EU on 1 May 2004, Regulation (EC) 918/2004 made the further maintenance of national protection of appellations of origin and geographical indications dependent on their notification to the European Commission within six months and on their registration. Further, because the Czech Republic joined the EU, the bilateral treaty of 1976 between Austria and the CSSR protecting the designation “Bud” for the CSSR was no more a treaty between Austria and a non-member state but a treaty between member states.

The Czech Republic only requested protection of “Budějovické pivo”, “Českobudějovicképivo”, and “Budějovický mestanský”, but not protection of “Bud”, which had been registered as a national appellation of origin. In its judgment of 8 September 2009, the ECJ ruled that the Community-wide protection regime of Regulation (EC) 510/2006 is conclusive, meaning that it supersedes international treaties between member states on protection regimes protecting a national designation in another member state if no application under Regulation (EC) 510/2006 is in place for such appellation of origin.

Austrian proceeding

In the proceedings before the Vienna Commercial Court, Budweiser Budvar argued that they not only based their claims on protection of “Bud” as an appellation of origin but also as a “simple and indirect indication of geographical provenance”. This argument, however, could not succeed due to the ECJ’s reference to the conclusive character of the Community protection regime. The national proceedings still went through three instances, nevertheless. Finally, the OGH decided in its judgment of 9 August 2011, referring to the preliminary ruling of the ECJ, that a designation protected in the Czech Republic as an appellation of origin cannot be protected at the same time as a simple and indirect indication of geographical provenance. Hence, no protection of the designation “Bud” as such simple and indirect indication of geographical provenance in the Czech Republic could exist and thus such protection cannot spread to the member state Austria by way of a bilateral treaty.

The decision leads to the result that the beer brewed by Anheuser-Busch in the US can now be marketed in Austria under the trademarks “Bud” and “American Bud”.

The OGH decided in its judgment of 9 August 2011, referring to the preliminary ruling of the ECJ, that a designation protected in the Czech Republic as an appellation of origin cannot be protected at the same time as a simple and indirect indication of geographical provenance.