Bennett J has dismissed the Bavarian Beer (trade) association’s opposition to the Dutch company, Bavaria NV’s application to register the Bavarian Beer trade mark.
Her Honour found:
182 In summary:
- The trade mark is inherently adapted to distinguish Bavaria NV’s goods from those of other traders and does so distinguish.
- If the trade mark were only inherently adapted to distinguish Bavaria NV’s goods to some extent, there would be insufficient evidence to find it capable of distinguishing Bavaria NV’s goods pursuant to s 41(5) of the Act.
- If the trade mark were not inherently adapted to distinguish Bavaria NV’s goods to any extent, there would be insufficient evidence to find it capable of distinguishing Bavaria NV’s goods pursuant to s 41(6) of the Act.
- I am not satisfied that the trade mark connotes that Bavaria NV’s product comes from Bavaria or that it has certain characteristics attributable to a Bavarian origin. I am not satisfied that the use of the trade mark would be likely to deceive or cause confusion or that it would be contrary to law.
- GENUINE BAVARIAN BEER and BAYERISCHES BEER are geographical indications for the purposes of ss 6 and 61 of the Act. Neither of these geographical indications equate with “Bavaria”. Section 61 does not refer to a sign that is substantially the same as or deceptively similar to a geographical indication. The trade mark does not contain a sign that is a geographical indication for the purposes of the Act.
- Even if the trade mark did contain a sign that is a geographical indication for the purposes of the Act, Bavaria NV would succeed in raising the defence under s 61(2)(c) of the Act.
- There is no discretion under s 55 of the Act to refuse to register a trade mark if none of the grounds of opposition are made out.
Professor Davison looks at the implications for (non-wine) GIs here.
I’ll just add that the Bavarians had argued s 55 of the Trade Marks Act conferred a discretion to block an application independently of the grounds of opposition. Hence the last bullet point above.
Of course, the last time I went to Europe, the Netherlands did seem to be quite some distance from Bavaria. I’m not sure what the status of the war (between the 2 sides) in Germany is.
Bennett J’s decision in Bavaria NV v Bayerischer Brauerbund eV  FCA 428