Action brought on 14 November 2006 - Budějovický Budvar v OHIM - Anheuser-Busch (BUD)

(Case T -309/06)

Language in which the application was lodged: French

Parties

Applicant: Budějovický Budvar, národní podnik (České Budějovice, 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, Inc.

Form of order sought

set aside the contested decision R 305/2005-2 of 1 September 2006 of the Second Board of Appeal of OHIM;

reject application No 24 711 for registration of the word mark BUD for goods in Class 32;

transmit the decision of the Court of First Instance of the European Communities to OHIM;

order Anheuser-Busch to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Anheuser-Busch, Inc.

Community trade mark concerned: Word mark BUD for goods in Class 32 - application No 24 711

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

Mark or sign cited in opposition: Right to the protected appellation of origin BUD for beer

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 62(1) of Regulation No 40/94 ¹ and Article 20 of the implementing regulation No 2868/95 ² in that the Board of Appeal does not have jurisdiction to rule on the validity of the appellation of origin relied on by the applicant in its opposition. The applicant also submits that the sign BUD constitutes an appellation of origin protected in France and Austria. It also relies on incorrect application of Article 8(4) of Regulation No 40/94 in that the appellation of origin BUD in its view does indeed constitute 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)