Budvar's evidence clearly sufficient to prove genuine use of earlier international work mark BUDWEISER

TRADEMARK LAW

The Board of Appeal referred, in particular, to advertisements showing images of Budvar beer bearing the mark BUDWEISER, to invoices sent to customers in Germany and Austria and to the fact that those advertisements and invoices related to the relevant period.

"106 In the present case, the Board of Appeal found that the evidence which Budvar produced was clearly sufficient to prove genuine use of the earlier international word mark BUDWEISER (R 238 203). The Board of Appeal referred, in particular, to advertisements showing images of Budvar beer bearing the mark BUDWEISER, to invoices sent to customers in Germany and Austria and to the fact that those advertisements and invoices related to the relevant pe-riod. In addition, the Board of Appeal found that the invoices in question were relevant, especially in the light of the order in Case C-259/02 La Mer Technology [2004] ECR I-1159. The Board of Appeal notes that, in that case, the Court of Justice stated that even minimal use by a single importer in the Member State concerned may be sufficient if the use serves a real commercial purpose (paragraph 26 of the contested decision)."

It is necessary to point out in that regard that in the grounds supporting the notice of opposition of 28 September 1999, Budvar expressly indicated that 'malted non-alcoholic beverages' and 'beer of any kind' were similar, in particular because those goods in fact designated 'malted' beverages. Those factors were fully known by the applicant for the mark which is, moreover, a well-known professional in the sector concerned. Moreover, Anheuser-Busch did not submit observations in that regard before the Board of Appeal, even though the Opposition Division had also found, albeit in connection with another earlier mark but also for beers, that the goods were 'identical or similar to a high degree'.
In those circumstances, Anheuser-Busch was in a position to understand the reasons which led the Board of Appeal to consider that the goods in question presented 'obvious similarities'.

IPPT20090325, CFI, Anheuser-Busch v OHIM - Budweiser

T-191/07 - ECLI:EU:C:2008:655