As you may remember from earlier posts, i.e. here, here and here the Bayerische Brauerbund e.V. (Bavarian Brewers Federation) fought a quite long battle to prevent a use of the mark "Bavaria" of a Dutch brewery in connection with beer.

After the German Federal Court of Justice ("Bundesgerichtshof") had annulled the judgement of the second instance court (OLG München) in view of the decision of the Court of Justice with respect to the referred questions, the OLG München now had to analyse whether the claim which had been made by the Brauereibund to revoke the German part of the International registration of the Dutch brewery may be based on the regulations concerning geographical indications according to German trade mark law. Although claims according to national law have to stand back behind protection awarded by European law, such national claims continue to exist until the term "Bayerisches Beer" has in fact been registered by the commission.

As most likely was to be expected, the OLG Munich indeed came to the conclusion that for the period before the registration of the term "Bayerisches Bier" by the commission, a protection of the term may be based on national German law, i.e. §§ 126 I, 127 III MarkenG. The term is thus regarded as a geographic indication without being a generic term. Further, the term has a very good reputation in the sense of § 127 III MarkenG, which is exploited by use of the International registration.

By the way, although the OLG Munich did not allow any further appeal to the Bundesgerichtshof, the Dutch brewery seems not to have said their final word and filed an appeal against the denial of leave to appeal ("Nichtzulassungsbeschwerde"), about which the Bundesgerichtshof will now have to decide ...

The decision (29 U 5084/03 of October 25, 2012, "BAVARIA HOLLAND BEER II") seems not to be available free of cost, but is published and/or discussed in many recent publications, e.g. GRUR 2013, 8, GRUR int 2013, 368-374, GRUR-Prax 2013, 87, GRUR-RR 2013, 163-168, MarkenR 2013, 73-80, NZG 2013, 6, WRP 2013, 556, Mitteilungen der deutschen Patentanwälte 2013, 191-197.