Action brought on 28 June 2006 - Bavaria v Council

(Case T-178/06)

Language of the case: Dutch

Parties

Applicant: Bavaria N.V. (represented by: G. van der Wal, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant submits that the Court should:

Hold that the invalidity of Regulation No 1347/2001 gives rise to non-contractual liability on the part of the Community pursuant to the second paragraph of Article 288 EC;

Order the Council to compensate Bavaria in respect of the damage which it has suffered, and which it will suffer, and set such compensation at € 100 million, or at such amount as the Court may consider to be meet and proper, with payment of default interest as appropriate;

Order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant submits that the Council is liable in respect of the damage suffered, and to be suffered, by it as a result of the adoption of Council Regulation (EC) No 1347/2001 of 28 June 2001, ¹ which registers the designation 'Bayerisches Bier' as a protected geographical indication. The applicant submits that Regulation No 1347/2001 is unlawful and cannot for that reason apply as against the applicant. The harm which the applicant has incurred through that illegality consists in, among other things, the costs of proceedings which have to be conducted, and which have been conducted, in various Member States, damage to the reputation of its marks containing the word 'Bavaria', and the future damage consequent on the infringement and loss of its trade mark rights.

The applicant submits that 'Bayerisches Bier' has been incorrectly designated as a geographical indication inasmuch as beer is not an agricultural product or a foodstuff within the terms of Annex I to the EC Treaty. According to the applicant, Regulation No 2081/92 ² cannot constitute the legislative basis for the registration of 'Bayerisches Bier' as a protected geographical indication in view of the fact that that regulation is also unlawful.

The applicant goes on to contend that the Council wrongly proceeded from the premise that the indication 'Bayerisches Bier' meets the requirements of Articles 2 and 4 of Regulation No 2081/92.

That conclusion, the applicant argues, was not adequately reasoned, particularly in light of the fact that the application for registration was not uncontested.

The designation 'Bayerisches Bier' also fails to meet the requirements governing application of the simplified procedure under Articles 17 and 2 of Regulation No 2081/92 inasmuch as that designation did not, prior to the reference date of 25 July 1993, enjoy any legal protection in Germany and had not become current through usage.

The applicant goes on to state that Bavaria is one of the German Länder and that the name of a Land may only in exceptional cases be used for a protected indication.

'Bayerisches Bier' also does not, according to the applicant, have any regional qualitative renown or reputation as it covers a large assortment of products with very differing characteristics. It submits that Regulation No 2081/92 does not permit the status of a protected geographical indication to be attributed to a generic collective term for different types of beer.

The application for registration by Germany also did not, the applicant argues, satisfy the requirements of Article 4(2) of Regulation No 2081/92 and provided an inadequate basis for registration.

The applicant submits further that the Council breached Article 3 of Regulation No 2081/92 and Article 28 EC by registering 'Bayerisches Bier', as that designation is a generic name in several Member States.

The procedure under Article 17 of Regulation No 2081/92 is also, the applicant avers, invalid inasmuch as concerned parties did not have any opportunity to set out their views in a transparent and fair administrative procedure.

It claims further that the Council proceeded from an erroneous point of view concerning the existence of beer types containing the designation 'Bayerisches Bier', in that none of the applicant's marks contains the indication 'Bayerisches Bier'.

The applicant also alleges infringement of its exclusive trade-mark rights as set out in Article 16(1) of the Agreement of 15 April 1994 on Trade-Related Aspects of Intellectual Property Rights, including the trade in counterfeit goods ('the TRIPS Agreement'). The extent of the permitted use of a geographical indication is not defined in greater detail by Article 14(3) of Regulation No 2081/92 or by Regulation No 1347/2001. The fact that the applicant's exclusive right is not fully protected is at variance with Article 16(1) of the TRIPS Agreement. Article 14(3) of Regulation No 2081/92 also applies conditions which are different from, and more restrictive than, Article 16(1) of the TRIPS Agreement. The co-existence between the older Bavaria mark and the geographical indication 'Bayerisches Bier' is also, the applicant submits, incompatible with Article 16(1) of the TRIPS Agreement.

The fact that the Council merely took account of the 'Bavaria' trade mark and ignored the brand name 'Bavaria' is also, it claims, contrary to the TRIPS Agreement.

By way of conclusion, the applicant submits that, in adopting Regulation No 1347/2001, the Council has infringed its property rights and legitimate expectations. In particular, the applicant contends, one consequence of Regulation No 1347/2001 may be to prevent the applicant from making further use of its trade mark in one or more Member States.

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¹ - Council Regulation (EC) No 1347/2001 of 28 June 2001 supplementing the Annex to Commission Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 (OJ 2001 L 182, p. 3).

² - Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1).