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Victory for Interleges member firm Cermák Horejs Matejka a spol in Budweiser Budvar vs. Anheuser-Busch case

budweiser_beer
Budweiser beer

 Anheuser-Busch InBev’s long quest to register the Budweiser brand as its trademark in Europe received its final blow as Europe’s highest court sided with Czech competitor Budweiser Budvar. AB-InBev appealed to the European Court of Justice to overturn an earlier decision refusing AB InBev permission to register Budweiser as its trademark. Mr. Cermak of Cermák Horejs Matejka a spol defended Budweiser Budvar in the case.

Court of Justice of the European Union press release on the matter

Published 29 July 2010, Luxembourg

“Anheuser-Busch may not register the word ‘Budweiser’ as a Community trade mark for beer. 

Budejovický Budvar, which brought opposition proceedings against that registration, was not obliged to provide, automatically, proof of renewal of its earlier identical mark during the period set for submission of evidence in support of its opposition

In 1996, the American brewer Anheuser-Busch applied to OHIM (the Office for Harmonisation in the Internal Market) for registration of the word 'Budweiser’ as a Community trade mark for beer and malted alcoholic and non-alcoholic beverages.

The Czech brewery Budejovický Budvar brought opposition proceedings against such registration relying on its earlier international word mark BUDWEISER, protected in particular in Germany and Austria. Budejovický Budvar provided evidence showing its ownership of the earlier trade mark but the protection enjoyed by that mark expired during the period which OHIM had set for submission of evidence in support of the opposition. As OHIM had not requested during that period that Budejovický Budvar provide evidence of renewal of its earlier mark, the company submitted that evidence – on its own initiative – but at a later stage in the opposition proceedings.

OHIM rejected Anheuser-Busch’s application for a Community trade mark on the ground that the mark applied for was identical to Budejovický Budvar’s earlier mark. OHIM also found that the goods listed in Anheuser-Busch’s application were essentially identical to the goods ‘beer of any kind’ covered by the earlier mark. In view of the identity of the marks and the obvious similarities between the goods concerned, OHIM also upheld Budejovický Budvar’s opposition in relation to malted non-alcoholic beverages.

Anheuser-Busch brought an action before the General Court against the OHIM decision. In its judgment delivered in March 2009, the General Court upheld OHIM’s decision, finding that Budejovický Budvar already held the right in Germany and Austria to use the word ‘BUDWEISER’ commercially for beer. The General Court also held that the Czech brewery had not been obliged to produce, on its own initiative, evidence of renewal of its earlier mark during the period fixed by OHIM for the submission of evidence.

Anheuser-Busch challenged the judgment before the Court of Justice, relying inter alia on the argument that, as the protection afforded to the earlier mark had expired before the end of the period fixed for the submission of evidence, Budejovický Budvar ought to have submitted evidence of the mark’s renewal within that period.

The Court of Justice today finds that Budejovický Budvar was not obliged to provide, automatically, within that period evidence of renewal of its earlier mark even though the protection afforded by that mark expired between the date on which notice of opposition had been filed and the end of that period. In fact, Budejovický Budvar would have been obliged to submit such evidence only if OHIM had expressly requested it. OHIM did not, however, make such a request.

Furthermore, the new rules relating to the production of evidence, which entered into force in 2005 and which now impose an express obligation on an opponent to produce proof of renewal of its earlier trade mark, may not be applied retroactively to the present case.

The Court therefore finds that, as Budejovický Budvar was not required to prove renewal of its trade mark during the period set for the submission of evidence in support of its opposition, it could submit the renewal certificate for the mark after that period had expired.

None of the grounds of appeal being founded, the Court dismisses Anheuser-Busch’s appeal in its entirety.”

 

Congratulations to Cermák Horejs Matejka a spol.

budweis_city

The city of Budweis

 

Increased Controversy in the US Over Arbitration

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Following on from Jeff Glen’s presentation on Arbitration at the Kiev AGM…

Increased Controversy in the US Over Arbitration

Shortly after my presentation on challenges to arbitration in the United States Federal courts at the Kiev AGM, the New York Law Journal published an article on compulsory arbitration by agreement under American law.  The article sets out the disputes over arbitration within the US, highlighting the problem of eliminating recourse to the courts in contract, like employment or brokerage agreement, where there is no realistic alternative to either agreeing to arbitration or not entering into the contract at all.

The article notes several cases that were then pending in the US Supreme Court in which this issue arose. On June 21, 2010, the Supreme Court decided, in a 5-4 decision , that where an arbitration agreement specifically confers on the arbitrator the exclusive power to "resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including ... any claim that all or any part of this Agreement is void or voidable," a court has no power to void the Agreement, or the arbitration provisions contained in the Agreement, on the ground of unconscionability.  Rent-a-Center, West v. Jackson, 2010 WL 2471058.  The effect of the decision is to empower the arbitrator to decide whether the party that agreed to arbitration, perhaps in situations where was grossly unequal bargaining power, will be relieved of his "choice" of arbitration.  A few days later, the Supreme Court held, this time without dissent on the point, that whether a particular dispute had been committed to arbitration in a less all-encompassing agreement is a matter for judicial determination.  Granite Rock Co. v. International Brotherhood of Teamsters, 2010 WL 2518518.

I do not know the position of other countries regarding enforcement of arbitration in situations of allegedly unequal bargaining power.  "Unconscionability" is a claim to avoid a contract that is prominent in the Uniform Commercial Code, which governs contract interpretation in most American jurisdictions.  If, as the accompanying article suggests, legislation will empower the courts to review these types of claims, there will be a substantial question whether American courts will enforce foreign arbitration awards under the New York Convention where a challenge of "unconscionability" is raised, particularly in countries in which that defence is not part of the local jurisprudence.

 Jeff Glen

 

 

Italian member and Vice-President of Interleges Stefano de Bosio responds to Wall Street Journal article on Geographical Indications

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Original WSJ article
Stefano de Bosio's response

 

Winner of the Interleges Award 2010 is announced

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Winner of the Interleges Award 2010 is announced

Topic - RECEPTION AND ENFORCEMENT OF INTERNATIONAL ARBITRATION ORDERS AND AWARDS 

Prize - €4,000

 

First place

Interleges is delighted to announce the winner of this year’s Interleges Award, in memory of Interleges-founder Stephen Rayner, as Tomasz Hara.

 Tomasz will join the Interleges members in Kiev at their AGM to collect his prize and spend time with the network’s members.

The prize winning essay is available to read here, and below is a short introduction to Tomasz and his legal career to date.

         “I am Polish and I am 22. I grew up in south-western Poland, near the city of Wroclaw. I started high school in Wroclaw, but spent the final year in Omaha, Nebraska. While in the US I decided to go to university in the UK and study law. For a variety of reasons I chose to do an LLB in English and European Laws at the University of Essex. This four-year degree involved a year abroad, which I spent in Vienna. I am about to sit my final exams in May and June. My interest in arbitration was sparked by the Willem C Vis Moot Court, in which I took part during my second year of studies; I have been coming back to the event as a coach since then. I seriously consider arbitration as an area of law into which I would like to qualify.


I did a host of internships in London and Warsaw and in effect I secured a training contract with Allen & Overy (in London), which will begin in March 2012. My plan for next year is to finish the mandatory Legal Practice Course (LPC); I obtained a place at the College of Law in London. I consider the possibility of postponing my training contract and enrolling on an LLM, possibly in legal theory and possibly in the US. I have no plans for this summer, but I am still looking for interesting internships. I would be delighted to obtain some experience in International Arbitration.”

Second place

In a year of a very high standard of submissions, Interleges is pleased to award Artur Barczewski second place.

Artur’s essay can be read here, and below is a short introduction to him and his legal career so far.

       “I grew up in Midzyrzecz, a small town located in the Western part of Poland. After completing elementary education in my hometown, I enrolled in a German-Polish project at the European School Marie & Pierre Curie in Guben (Germany), where I finally graduated in 2005. In the same year, I was admitted at the Free University of Berlin as a student of Law. A year later, I changed my course of study from German law to a Bachelor and subsequent Master degree in German and Polish Law at the European University Viadrina Frankfurt (Oder). The decision was particularly beneficial as it opened an additional possibility of taking a state examination not only in Germany, but also in Poland. In addition, it gave me a valuable insight into two different civil law jurisdictions.

From the very beginning of my study in Frankfurt (Oder), I was very pleased to have the opportunity to work as a student assistant at the Chair of Public International Law, European Law and International Constitutional Law. During this time, I gained a great experience in the field of academic research and was focused on International and European Law, especially European Security and Defence Policy and Piracy at Sea. In 2008, I participated in an essay competition organized by Warsaw office of the international law firm Hogan & Hartson and the daily Polish newspaper “Rzeczpospolita”. With the essay on “The notion of ´investment´ under the ICSID Convention and Bilateral Investment Treaties” (in German) I was privileged to come first place. The winning essay was later published in the Polish Arbitration Bulletin “Biuletyn Arbitra?owy“, issue no. 9.

The success of the first essay gave me both the courage and motivation to submit further contributions on current issues in arbitration. By way of example, in the issue no. 11 of the Polish Arbitration Bulletin I discussed in my paper, “The Fate of the Arbitration Clause in the Case of Insolvency under German Law” (in German), an interesting and highly debated topic of the impact of insolvency proceedings on arbitration. Moreover, my particular interest for arbitration and international commercial law was further developed in April 2009 when I took the opportunity to intern with Hogan & Hartson Jamka Sp. K. Warsaw at the litigation and arbitration department. In addition, in July 2009 I took part in a summer school on alternative dispute resolution organized by Humboldt University of Berlin and Tulane Law School. 

After obtaining a Bachelor degree in 2008, I have been continuing my education on the Master course in German and Polish Law at the European University Viadrina. In autumn 2009, I applied for a leave of absence in order to perfect my English skills and benefit from Erasmus scholarship at the University of Hull, United Kingdom. As Erasmus exchange student, I am currently taking modules in areas of International Commercial Law and European Law.”

 

The subject of the Interleges Award 2011 will be announced shortly.

   

 

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