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when called upon to apply national rules with a view to ordering measures for the
protection of rights in a field to which the TRIPS Agreement applies and in which the
Community has already legislated, as is the case with the field of trade marks,
the national courts are required under Community law to do so, as far as possible, in the
light of the wording and purpose of the relevant provisions of the TRIPS Agreement.
81
2.184
In
Anheuser-Busch Inc
.
v Bud˘jovický Budvar
82
the Court held that applying Art
70(2) of the TRIPS Agreement, obligations arising from that agreement apply
in respect of 'all subject-matter existing … and which is protected' on the date
of application of that Agreement to a Member of the WTO so that, 'from that
date, such a member is required to fulfil all the obligations arising from that
agreement in respect of that existing subject-matter'.
83
Furthermore, the Court pointed out that Art 70(4) of the TRIPS Agreement
applied to acts in respect of specific objects embodying protected subject matter,
which become infringing under the terms of legislation in conformity with that
agreement, and which were commenced, or in respect of which a significant
investment was made, before the date of acceptance of the WTO Agreement.
In such a situation, Art 70(4) allows the members to provide for limitations of
the remedies available to the holder of the right against continued performance
of such acts after the date of application of the TRIPS Agreement to the WTO
member concerned.
84
Thus in the case before it the acts which the defendant
was alleged to have committed had occurred before the date of application of
the TRIPS Agreement but continued after that date, so the Court ruled that the
TRIPS Agreement applied to that situation.
85
2.185
In referring to the specific issues raised by the case the ECJ concluded that a
trade name which is not registered or established by use in the Member 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 if the
proprietor of the trade name has a right falling within the substantive and
temporal scope of that Agreement which arose prior to the trade mark with
which it is alleged to conflict and which entitles him to use a sign identical or
similar to that trade mark.
86
2.186
81
Ibid, at para 55.
82
[2005] ETMR 286.
83
Ibid, at para 49.
84
Ibid, at para 50.
85
Ibid, at para 52.
86
Ibid, at para 100.
