EN Official Journal of the European Union C 193/13

Appeal brought on 12 June 2009 by Anheuser-Busch, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 25 March 2009 in Case T-191/07: Anheuser-Busch, Inc. v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM), Budějovický Budvar, národní podnik

(Case C-214/09 P)

2009/C 193/18

Language of the case: English

Parties

Appellant: Anheuser-Busch, Inc. (represented by: V. von Bomhard, Rechtsanwältin, B. Goebel, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Budějovický Budvar, národní podnik

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of the European Communities of 25 March 2009 in Case T-191/07 and

— order that the costs of the proceedings be borne by the applicant at first instance.

Pleas in law and main arguments

Anheuser-Busch advances three grounds of appeal, namely, first, a violation of Article 41(2) 3rd sentence Regulation No. 207/2009 (1) in connection with Rules 16(1), (3) and 20(2) of Commission Regulation (EC) No. 2868/95 (2) of 13 December 1995 implementing Council Regulation (EC) No. 40/94 (3) on the Community trade mark, second, a violation of Article 76(2) Regulation No. 207/2009, and third, a violation of Article 42(2), (3) Regulation No. 207/2009.

The first two pleas concern procedural matters. Anheuser-Busch submits that these are of importance here. Only by taking into account the earlier registration IR 238 203 could the Board of Appeal decide the opposition based on Article 8(a) Regulation 207/2009, inasmuch as it concerned beers. This also meant that the arguments made previously in the course of the opposition proceedings as to whether the word ‘Budweiser’ dominated Budvar's figurative marks were disregarded.

The Court of First Instrance erred when considering that Budvar had been under no legal obligation to submit evidence of the continued validity (i.e. renewal) of its registration IR 238 203. This obligation resulted from Article 41(2) 3rd sentence Regulation No. 207/2009 read in conjunction with Rules 16(1), (3) and 20(2) Implementing Regulation 1995, and the notification issued by OHIM on 18 January 2002, reiterating the invitation for Budvar to submit ‘any further facts, evidence and arguments in support of his opposition’. The obligation was to submit such evidence by the deadline set in this notification, i.e. by 26 February 2002. Nevertheless, it was not submitted until 21 January 2004.

As a consequence, the finding of the Court of First Instance that Article 76(2) Regulation No. 207/2009 did not apply with respect to the submission of the renewal certificate, as there was no ‘due time’ for this submission, was also erroneous, and resulted in a violation of this provision. In fact there was a ‘due time’ and the Board of Appeal would have had to at least exercise its discretion under Article 76(2) as to whether it was going to take the evidence into account. The Court of First Instance has read the Board of Appeal decision as saying that the renewal certificate was filed in good time. As a result, the violation of Article 76(2) lay in the non-use of discretion by the Board of Appeal, and its confirmation by the Court of First Instance.

The Court of First Instance also failed to recognise that the evidence of use submitted by Budvar in support of its opposition was insufficient and referred, moreover, to trade marks other than the one on which the contested decision and the underlying Board of Appeal decision were based, thereby violating Article 42(2), (3) Regulation No. 207/2009.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark OJ L 78, p. 1

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark OJ L 303, p. 1

(3) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, p. 1