Geographical Indications

IPKat reports on the latest round in the Budĕjovický Budvar dispute, in which the Czech owners of Budweiser beer have sought to prevent Rudolf Ammersin from importing the US Bud product from outside the EU into Austria. The Czech entity has asserted that authority for prevention of the imports is provided by a bilateral agreement between Austria and the former (non-EU) state of Czechoslovakia.

After ten years the dispute continues, with the Court of Justice of the European Communities in 2003 having referred to geographical indications (GI) and litigants then seeking clarification as to whether tagging a product with a GI

must fulfil 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

and whether

a consumer survey is to be carried out for ascertaining perceptions in the country of origin, and, if so, that a low, medium or high degree of recognition and association is required in order for protection to be available; [and whether the requirement that] the designation must actually have been used as a geographical indication by several undertakings, and not just one undertaking, in the country of origin and that use as a trade mark by a single undertaking precludes protection?

The Court has now ruled that

– in order to determine whether a designation can be considered to constitute a simple and indirect indication of geographical provenance, ... the national court must ascertain whether, according to factual circumstances and perceptions prevailing in the Czech Republic, that designation, even if it is not in itself a geographical name, is at least capable of informing the consumer that the product bearing that indication comes from a particular place or region of that Member State;

... it is for the national court to decide, in accordance with its own national law, whether a consumer survey should be commissioned for the purpose of clarifying the factual circumstances and perceptions prevailing in the Czech Republic in order to ascertain whether the designation 'Bud' at issue in the main proceedings can be classified as a simple and indirect indication of geographical provenance and has not become generic in that Member State. It is also in the light of that national law that the national court, if it finds it necessary to commission a consumer survey, must determine, for the purposes of making the necessary assessments, the percentage of consumers that would be sufficiently significant

IPKat comments that he is

intrigued at the possibility of a trial court in one [EU] Member State ordering the carrying out of a consumer survey in another in order to ascertain consumer perceptions relating to geographical identification and genericity. It appears to him that there is no single approved methodology or standard of proof for such surveys across the European Union. What if, for example, a court in State A orders a survey in State B which fulfils the lower standards of proof in State A than are demanded in State B?

For the moment I think I'll stick to rereading Anheuser-Busch, Inc v Budìjovický Budvar, Národní Podnik [2002] FCA 624, Anheuser-Busch v Budweiser Budvar [2001] 3 NZLR 666 and Comite Interprofessionnel du Vin de Champagne v Wineworths Group Limited [1991] 2 NZLR 432.