TUESDAY, 30 DECEMBER 2008
Advocate General sees no problem with "Bayerisches Bier" GI

In Case C-343/07 Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV Advocate General Mazák advised the Court of Justice of the European Communities earlier this month that it should rule against Dutch brewer Bavaria NV in its dispute with a group of German brewers over its right to continue use of the trade mark BAVARIA. The Dutch brewery has challenged the validity of EU rules that gave the Bavarian brewers geographical indication rights to the term "Bayerisches Bier" (the German for "Bavarian beer"). The German brewers in turn want to use that right in order to stop Bavaria using its name.

The questions originally referred to the Court for its ruling are as follows:

"1. Is [Regulation No 1347/2001] invalid, possibly as a consequence of the invalidity of other acts, in light of the following:

Breach of general principles

– the invalidity of Article 1(1) of [Regulation No 2081/92], read in conjunction with Annex I thereto, in so far as it permits the registration of geographical indications relating to “beer”, which is an alcoholic beverage listed (wrongly) in that Annex as one of the “foodstuffs” referred to in Article 1(1), but which is not one of the “agricultural products” listed in Annex I to the EC Treaty and referred to in Article 32 (formerly Article 38) and Article 37 (formerly Article 43) thereof, which the Council took as the legal basis for its competence to adopt [Regulation No 2081/92];

– the invalidity of Article 17 of [Regulation No 2081/92] in so far as it provides for an accelerated registration procedure under which the rights of interested parties are substantially limited and impaired, in so far as it makes no provision for a right of opposition, in clear breach of the principles of transparency and legal certainty, as is evident in particular from the complexity of the procedure for registering “Bayerisches Bier”, the protected geographical indication at issue, which took more than seven years from 1994 to 2001, and from the express acknowledgment to that effect in recital 13 in the preamble to [Regulation No 692/2003], Article 15 of which repealed – for those reasons – Article 17 of [Regulation No 2081/92];

Failure to comply with procedural requirements

– the failure of the indication “Bayerisches Bier” to satisfy the conditions laid down in Article 17 of [Regulation No 2081/92] for eligibility for registration in accordance with the simplified procedure provided for therein, in that, at the time when the application for registration was submitted, that indication was not a “legally protected name” in Germany, nor had it been “established by usage” there;

– the fact that the question whether the preconditions had been met for registration of the indication “Bayerisches Bier” was not given due consideration either by the German Government before submitting the application, or by the Commission itself after receiving that application, contrary to the requirements established by the case-law of the Court of Justice (Case C‑269/99 Carl Kühne and Others [2001] ECR I‑9517);

– the fact that the application for registration of the indication “Bayerisches Bier” was not submitted in good time by the German Government in accordance with Article 17(1) of [Regulation No 2081/92] (six months after the entry into force of the Regulation, which took place on 24 July 1993), it being also the case that the subject-matter of the application initially submitted by the applicant company envisaged eight varying indications – with a reservation as to the possibility of later variations of an unspecified nature – which did not coalesce to form the current single indication “Bayerisches Bier” until well after the deadline on 24 January 1994;

Failure to comply with substantive requirements

– failure of the indication “Bayerisches Bier” to satisfy the substantive requirements laid down in Article 2(2)(b) of [Regulation No 2081/92] for registration as a protected geographical indication, given the generic nature of that indication, which has historically designated beer produced in accordance with a particular method of production which originated during the 19th century in Bavaria, whence it spread throughout Europe and the rest of the world (the method known as “the Bavarian method”, based on bottom fermentation), and which even today in a number of European languages (Danish, Swedish, Finnish) is used as a generic term for beer and which, in any case, can at most identify, solely and generically, from among the numerous varieties of beer in existence any type of “beer produced in the German Land of Bavaria”, there being no “direct link” (Case C‑312/98 Warsteiner [2000] ECR I‑9187) between a specific quality, reputation or other characteristic of the product (beer) and its specific geographical origin (Bavaria), nor evidence that this is one of the “exceptional cases” required under Article 2(2)(b) of [Regulation No 2081/92] in order for it to be permissible to register a geographical indication containing the name of a country;

– the fact that, as emerges from the preceding paragraph, the indication “Bayerisches Bier” is a “generic” indication, and as such ineligible for registration pursuant to Articles 3(1) and 17(2) of [Regulation No 2081/92];

– the fact that registration of the indication “Bayerisches Bier” should have been refused pursuant to Article 14(3) of [Regulation No 2081/92], since, in the light of “the reputation and renown” of the Bavaria marks and “the length of time for which [they] have been used”, registration was “liable to mislead the consumer as to the true identity of the product”?

2. In the alternative, if Question 1 is held inadmissible or unfounded, should [Regulation No 1347/2001] be construed as meaning that recognition of the protected geographical indication “Bayerisches Bier” is to have no adverse effects on the validity or usability of pre-existing marks of third parties in which the word “Bavaria” appears?"
Advocate General Mazák has advised the Court to rule that
"(1) Assessment of the question referred has not revealed any factors capable of affecting the validity of Council Regulation (EC) No 1347/2001 ... or of Council Regulation (EEC) No 2081/92 ... on which it is based.

(2) Regulation No 1347/2001, in conjunction with Regulation No 2081/92, is to be interpreted as meaning that the registration of ‘Bayerisches Bier’ as a protected geographical indication does not affect the validity or usability of pre-existing trade marks of third parties containing the word ‘Bavaria’, provided, however, that those marks were registered in good faith and are not liable to be invalid or revoked on the basis of ... Council Directive 89/104 ... as provided for under Article 14(2) of Regulation No 2081/92, which it is for the national court to determine".

Posted by: Jeremy Phillips @ 06.27
Tags: Bavarian Beer, ECJ,
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