What they say about today's AG Opinions ...

tytoc collie always enjoys the press ...

Here are some early reports and responses to today's three big Advocate Generals' Opinions from the Court of Justice of the European Union -- plus a warning.  Just to remind readers: these Opinions are NOT rulings of the court, but merely "advisories" which the Court is free to accept (as it does around 80% of the time) or reject.  If you are a British journalist with the popular press please read that warning three times.  If by then you haven't understood it, phone me and I'll explain it to you slowly and one syllable at a time.

In the dispute between the two Budweisers over the underhand way in which one tried to dispose of the concurrently valid trade mark of the other, Bloomberg (via Stephanie Bodoni) reports this:

"Anheuser-Busch InBev NV should lose a challenge at the European Union s top court to get the sole U.K.trademark right for Budweiser over Czech competitor Budejovicky Budvar NP, an adviser to the court said. 

The EU law invoked by AB InBev is not applicable in this case, Advocate General Verica Trstenjak of the European Court of Justice said in a non-binding opinion today. The case must be decided in accordance with national law to see if Budvar's trademark can be declared invalid. The Luxembourg-based EU court follows opinions in most cases. 

While AB InBev, the world s largest brewer, and Budvar were both granted U.K. trademark rights to Budweiser by an English court in 2000, AB InBev argues that its right is the only one that should prevail. AB InBev told the EU court at a hearing last year that its market for Budweiser was 10 times bigger, rejecting Budvar s arguments of a long co-existence. 

If the Court of Justice adopts this opinion, we believe we will ultimately be successful before the U.K. Court of Appeal, Leuven, Belgium-based AB InBev said in an email. 

The two brewers have been entangled in a fight going back to the early 1900s over the right to the Bud or Budweiser names for beer, merchandising and other products. Budvar claims the rights because its beer comes from Ceske Budejovice, which is called Budweis in German. Anheuser-Busch, founded by German-born immigrant to the U.S. Adolphus Busch, says it started using the Budweiser trademark in 1876, 19 years before Budvar was formed.
In today's case, a U.K. court sought the EU tribunal s guidance on whether a trademark can be invalidated after having co-existed for a certain time with an identical right. ..."

And this was giant IP practice Marks & Clerk's comment (this firm represented Budvar)

"The Advocate General of the European Court of Justice has this morning advised that the court rule against the attempt of Anheuser-Busch (maker of US Budweiser beer) to invalidate Czech rival Budějovický Budvar’s concurrent trade mark for the ‘Budweiser’ name.

Both companies were given permission by the Court of Appeal to simultaneously register the ‘Budweiser’ trade mark in 2000, given their long-standing history of honest coexistence in the UK market. However, in 2005, Anheuser-Busch started legal action to invalidate Budvar’s ‘Budweiser’ mark on the grounds that their application for the registration of the mark in the UK (1976) predates Budvar’s application (1989).

Today AG’s opinion on questions referred to the European Court of Justice (ECJ) by the Court of Appeal regarding the case sides with Budvar, affirms that there is no room for Anheuser-Busch’s argument in European law. The final judgment – on which the AG opinion is non-binding – is expected at a later date.

... Kirsten Gilbert, Partner, comments:

“We are pleased with the favourable tenor of the AG’s opinion. The two brands have co-existed in the UK for decades, differing in image, taste, price, and target market. The identical nature of the ‘Budweiser’ marks is an honest, historical co-incidence, and causes no significant confusion amongst UK consumers.

“We now await the ECJ’s final ruling, in the hope that it will concur with the AG’s opinion.”

The dispute between the two brands has been live for decades, culminating in a number of different battles for the Budweiser name across different territories and legal systems".

See also this short note in the Wall Street Journal and "Opinion goes against AB InBev in Budweiser Trade Mark Dispute" in The Publican.


In the dispute over the right of broadcasters to control live TV transmissions of football matches through the use of country-specific decoders, the English Premier League commented as follows:

"The Premier League are currently considering the detail of Advocate General Kokott’s Opinion but our initial view is that it is not compatible with the existing body of EU case law and would damage the interests of broadcasters and viewers of Premier League football across the EU.

“The Opinion expressed by Advocate General Kokott may reflect a particular policy view in relation to the provision of audio-visual services throughout the EU. However, if her opinion were to be reflected in the ECJ's judgment, it would prevent rights holders across Europe from marketing their rights in a way which meets demand from broadcasters whose clear preference is to acquire, and pay for, exclusive rights within their own territory only and to use those rights to create services which satisfy the cultural preferences of their viewers within that territory.

“We would hope that when the ECJ comes to its judgment in our case that the current European law, framed to help promote, celebrate and develop the cultural differences within the EU, is upheld.

“If the European Commission wants to create a pan-European licensing model for sports, film and music then it must go through the proper consultative and legislative processes to change the law rather than attempting to force through legislative changes via the courts.

“The ECJ is there to enforce the law, not change it.”"

See also "Football not facing TV doomsday" (BBC Blog here), "Pub lady goes 1-0 up over cheaper football" in the Guardian here, "Landlady 1-0 up against Sky in Fight for Cheaper Football" (Metro, here).


On the dispute over whether, and if so how, counterfeit goods can be seized by customs officers in the EU if they're in transit from one non-EU country to another, tytoc collie was disappointed to see how little media coverage emerged.  Reuters' report is here ... and that's about all.