Geography Reference
In-Depth Information
to the same type of product, the application for registration of which was
submitted both before the registration of that name and before the entry into
force of Regulation No 692/2003.
138
O. EUROPEAN GEOGRAPHICAL INDICATIONS IN NON-EUROPEAN TRADE
MARK PROCEEDINGS
The globalisation of trade has inevitably resulted in the globalisation of
intellectual property disputes. Among these are fights between those asserting
European GIs in trade marks proceedings. For example the conflict between
Bayerischer Brauerbund and Bavaria NV, described above, was fought out in
trade mark opposition proceedings in Australia.
139
Bayerischer Brauerbund
opposed the registration of the 'BAVARIA' trade mark for beer by Bavaria NV
on a number of grounds, one of which was that 'Bavaria' is a geographical
indication within the meaning ofs6oftheAustralian Trade Marks Act so that
the registration of the trade mark should be refused pursuant to s 61 of that Act.
The other grounds were that the trade mark 'BAVARIA' was not capable of
distinguishing, nor was it inherently adapted to distinguish, Bavaria NV's goods
from the goods of other persons.
140
Bayerischer Brauerbund also argued that
the word mark 'BAVARIA' suggested an erroneous and therefore misleading
origin to Australian consumers in breach of Australia's consumer protection
legislation
141
and was therefore contrary to law and should be rejected under
s 42 of the Australian Trade Marks Act ('the Act'). On the same reasoning it
argued that the use of the trade mark would be likely to deceive or cause
confusion, and registration should be refused under s 43 of the Act.
3.205
On the GIs issue, Bayerischer Brauerbund called in aid its PGI registration for
'BAYERISCHES BIER'. However, the Federal Court held that the critical
question was whether 'BAVARIA' was a geographical indication and disquali-
fied from registration under s 61 of the Act. It found no evidence that this was a
geographical indication or that it was deceptively similar to the PGI 'BAYER-
ISCHES BIER' and rejected the opposition on this ground.
142
The Court also
ruled that as Bayerischer Brauerbund had not shown that Australian consumers
equated 'Bavaria' as a source of beer there was no evidence of confusion or of
consumers being misled, so the opposition failed on these bases also.
143
3.206
138
Ibid, at para. 69.
139
Bavaria NV v Bayerischer Brauerbund eV
[2009] FCA 428.
140
s 41 of the Trade Marks Act 1995 (Cth).
141
s 52 and/or ss 53(a), 53(c), 53(d) or 53(eb) of the Trade Practices Act 1974 (Cth).
142
Ibid, at para 162.
143
Ibid, at paras 91, 94, 106.
