Action brought on 15 September 2006 - Budĕjovický Budvar v OHIM - Anheuser-Busch (word mark 'BUD')

(Case T -257/06)

Language in which the application was lodged: French

Parties

Applicant: Budĕjovický Budvar, národní podnik (České Budĕjovice, Czech Republic) (represented by: F. Fajgenbaum, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal of OHIM: Anheuser-Busch, Incorporated

Form of order sought

annul the contested decision R 802/2004-2 of 28 June 2006 of the Second Board of Appeal of OHIM;

reject application No 1 737 121 for registration of the word mark 'BUD' to designate services in Classes 35, 38, 41 and 42;

send the decision of the Court of First Instance to OHIM;

order Anheuser-Busch to pay all the costs and expenses.

Pleas in law and main arguments

Applicant for the Community trade mark: Anheuser-Busch, Incorporated

Community trade mark concerned: Word mark 'BUD' for services in Classes 35, 38, 41 and 42 - Application No 1 737 121

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Protected designation of origin 'BUD' to designate beer

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 62(1) of Regulation No 40/94 ¹ and Article 20 of implementing Regulation No 2868/95 ² in that the Board of Appeal is not competent to rule on the validity of the designation of origin invoked by the applicant in the context of its opposition. It further submits that the sign 'BUD' constitutes a designation of origin, protected in both France and Austria. The applicant also invokes misapplication of Article 8(4) of Regulation No 40/94 in that, in its view, the designation of origin 'BUD' is indeed a sign used in the course of trade.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

² - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).