In Anheuser-Busch Inc v OHIM [2009] T-191/07 (unreported), the latest installment of the dispute over the use of the BUD and BUDWEISER trade marks by Anheuser-Busch and Czech company Budejovicky Budvar (Budvar), the European Court of First Instance (CFI) upheld a decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) Board of Appeal preventing Anheuser-Busch from obtaining a Community Trade Mark for BUDWEISER. Rejecting various procedural grounds of appeal, the Court held that Budvar had made genuine use of its earlier international registration for BUDWEISER under Article 43 of the Community Trade Mark Regulation (40/94/EEC) (Regulation).

BACKGROUND

In April 1996, Anheuser-Busch filed a Community Trademark application for BUDWEISER for “beer, ale, porter, malted alcoholic and non-alcoholic beverages” in Class 32. Budvar opposed the application on the basis of its prior international registration for the word BUDWEISER for “beers of any kind” and two prior international registrations for figurative marks including the word BUDWEISER. OHIM rejected Anheuser- Busch’s application on the basis that the trade mark applied for was identical to the earlier international word mark BUDWEISER, protected in particular in Austria and Germany. Anheuser-Busch appealed to the Court on a variety of procedural grounds and argued that the OHIM Board of Appeal had misinterpreted Article 43 of the Regulation on the basis that the evidence provided by Budvar was insufficient to prove genuine use of the earlier word mark.

THE DECISION

Analysing the case law on genuine use, the Court noted that there was genuine use of a trade mark where the mark was used in accordance with its essential function, namely to guarantee the identity of goods or services for which it is registered. Moreover, genuine use did not include token use for the sole purpose of preserving the rights conferred by a registration. When analysing whether use of the trade mark was genuine, the Court had to have regard to all the circumstances relevant to establishing whether the commercial exploitation of the mark was real in the particular case, including the nature of the goods and services, the characteristics of the market and the scale and frequency of use of the mark.

On the facts, the relevant evidence consisted of seven advertisements in Austrian newspapers and magazines which appeared between 1995 and 1997 and eight advertisements from German magazines which appeared between 1996 and 1998, in which the word “Budweiser“ was used in connection with beer. Budvar also submitted 23 invoices issued to Austrian customers between 1993 and 2000 and 14 invoices issued to German customers between 1993 and 1997. The Court agreed with the OHIM Board of Appeal that Budvar had submitted sufficient evidence to show genuine use of the mark BUDWESER in connection with beer covering the relevant five year period before the publication of Anheuser-Busch’s Community Trade Mark application required by Article 43 of the Regulation.

Anheuser-Busch’s argument that OHIM should not have taken into account certain evidence that Budvar filed late was rejected on the basis that OHIM had a wide discretion to decide whether to consider such documents.

COMMENT

The case confirms the principles set out in previous European case law that even minimal use of a mark is sufficient to constitute “genuine use,“, provided that it has a real commercial purpose. Although Budweiser was denied a Community Trade Mark, the ruling will not affect the trade mark rights that it holds in individual European countries.