Trade mark decision

BL Number

O/178/01

Decision date

11 April 2001

Hearing officer

Mr G Salthouse

Mark

BUDWEISER BUDBRAU

Classes

32

Registered Proprietor

Budejovicky Budvar Narodni Podnik

Applicant for Revocation

Anheuser-Busch Inc

Revocation

Section 46(1)(b)

Result

Section 46(1)(b): - Application failed.

Points Of Interest

• 2. In the High Court before Simon Thorley QC (Deputy Judge) this case was heard with BL O/071/01 (Revocation, BUD) and BL O/2000/01 (Application for Invalidity of BUD). In the matter of this case the Hearing Officer’s decision was overturned - it being the judge’s view that use of BUDWEISER BUDBRAU (in block capitals) did not protect the mark as registered in stylised form. See BUD and BUDWEISER BUDBRAU Trade Marks [2002] RPC 38 page 747.
• 1. The Hearing Officer’s decision was appealed to the Appointed Person. In his decision dated 2 November 2001 (BL O/504/01) the Appointed Person referred the case to the High Court as he considered that a point of general legal importance was at issue.
• 3. The registered proprietor appealed to the Court of Appeal. Heading Officer’s decision reinstated. See BUD and BUDWEISER BUDBRAU Trade Marks [2003] RPC 25 page 477.

Summary

The registered proprietor relied, for evidence of use of the mark in suit during the relevant period, on use of a neck label affixed to beer bottles sold during the period, the neck label being a device mark which was itself registered as such and which included the words BUDWEISER BUDBRAU printed in block capitals and encircling a motif.

In his approach to determining whether use of the neck label amounted to use of the mark in suit, he found firstly that use of the words BUDWEISER BUDBRAU in block capitals was use of the mark in suit within the meaning of Section 46(2), the central message of the mark being those words irrespective of the stylisation. He then proceeded to find that the use of those words on the neck label together with the other figurative elements of the label constituted use of the mark in suit (Elle case distinguished).

In the light of evidence as to the nature and scale of the use of the neck label, he was also persuaded that there had been genuine use of the mark in suit. The application accordingly failed, and no amendment of the specification of goods was deemed necessary.

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