THURSDAY, 29 JANUARY 2009
Forthcoming ECJ Opinion
Next Thursday, 5 February, the Advocate General will deliver his Opinion to the Court of Justice of the European Communities in Case C-478/07 Budejovický Budvar národní podnik v Rudolf Ammersin GmbH, a reference for a preliminary ruling from the Handelsgericht Wien (Austria). The questions referred for the ruling are as follows:
"1. In its judgment of 18 November 2003 in Case C-216/01 [between the same parties] the Court of Justice defined the requirements for the compatibility with Article 28 EC of the protection of a designation as a geographical indication which in the country of origin is the name neither of a place nor of a region, namely that such a designation must,
- according to the factual circumstances and
- perceptions in the country of origin, designate a region or a place in that State,
- and that its protection must be justified there on the basis of the criteria laid down in Article 30 EC.
Do those requirements mean:
1.1. that the designation as such fulfils a specific geographical indication function referring to a particular place or a particular region, or does it suffice that the designation is capable, in conjunction with the product bearing it, of informing consumers that the product bearing it comes from a particular place or a particular region in the country of origin;
1.2. that the three conditions are conditions to be examined separately and to be satisfied cumulatively;
1.3. that a consumer survey is to be carried out for ascertaining perceptions in the country of origin, and, if so, that that a low, medium or high degree of recognition and association is required;
1.4. that the designation has actually been used as a geographical indication by several undertakings, not just one undertaking, in the country of origin and that use as a trade mark by a single undertaking precludes protection?
2. Does the circumstance that a designation has not been notified or its registration applied for either within the six-month period provided for in [Commission] Regulation (EC) No 918/2004 [of 29 April 2004 introducing transitional arrangements for the protection of geographical indications and designations of origin for agricultural products and foodstuffs in connection with the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia] or otherwise in the context of [Council] Regulation (EC) No 510/2006 [of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs] mean that existing national protection, or in any case protection that has been extended bilaterally to another Member State, becomes void if the designation is a qualified geographical indication under the national law of the State of origin?
3. Does the circumstance that, in the context of the Treaty of Accession between the Member States of the European Union and a new Member State, the protection of several qualified geographical indications for a foodstuff has been claimed by that Member State in accordance with Regulation (EC) No 510/2006 mean that national protection, or in any case protection that has been extended bilaterally to another Member State, for another designation for the same product may no longer be maintained, and Regulation (EC) No 510/2006 has preclusive effect to that extent?"The issue at the heart of this follow-up reference is the legal status of the word "Bud" in the context of the sale of beer as American Bud -- made by Anheuser-Busch and imported into Austria for sale by Rudolf Ammersin.
Posted by: Jeremy Phillips @ 12.31
Tags: ecj reference,