Geography Reference
In-Depth Information
2. Relevant signs
6.159
The Court in Case C-245/02
Anheuser-Busch Inc v Bud˘jovický Budvar
159
ruled
that the relevant provisions of national trade mark law must be applied and
interpreted to the effect that the exercise of the exclusive right conferred on the
proprietor of the trade mark to prevent the use of the sign of which that mark
consists or of a sign similar to that mark must be reserved to cases in which a
third party's use of the sign prejudices or is liable to prejudice the functions of
the trade mark. It privileged the essential function of a trade mark in guarantee-
ing consumers the correct origin of the goods to which they are applied.
160
It
noted that 'this interpretation was moreover, supported by the general purpose
of the TRIPS Agreement' which is to ensure that a balance is maintained
between the aim of reducing distortions and impediments to international trade
and that of promoting effective and adequate protection of intellectual property
rights so as to ensure that the measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade.
161
The
Court considered that distinction also 'to be appropriate in the light of the
specific object of Article 16 of the TRIPS Agreement, which is to guarantee a
minimum standard of exclusive rights agreed at international level'.
162
The ECJ also considered applicable the exceptions provided for in Art 17 of the
TRIPS Agreement, which 'are intended, inter alia, to enable a third party to use
a sign which is identical or similar to a trade mark to indicate his trade name,
provided that such use is in accordance with honest practices in industrial or
commercial matters'.
163
6.160
3.
'Existing prior right'
The final question raised in Case C-245/02
Anheuser-Busch Inc v Bud˘jovický
Budvar
164
was whether and, if so, under what conditions, a trade name which is
not registered or established by use in the state in which the trade mark is
registered and in which protection against the trade name in question is sought
may be regarded as an existing prior right within the meaning of the third
sentence of Art 16(1) of the TRIPS Agreement, having regard in particular to
6.161
159
[2005] ETMR 286.
160
Ibid, at para 71.
161
Ibid, at para 72.
162
Ibid, at para 73.
163
Ibid, at para 85.
164
[2005] ETMR 286.
