Case C-245/02: Reference for a preliminary ruling by the korkein oikeus by order of that Court of 3 July 2002 in the case of Anheuser-Busch, Incorporated against Budéjovický Budvar, národní podnik
Date: 2002-09-14
Institutions: Court of Justice
Subjects: TRIPS, brand name, interpretation of the law, national law, trade agreement, trade mark, trade-mark law

C 219/4

EN

Official Journal of the European Communities

14.9.2002

2.

Is it of importance as regards the acceptability of discon-
tinuing the procedure that the content of the invitation
to tender is defective because of the incorrectness of the
assessment previously made by the contracting authority?

( 1) OJ L 199, p. 1.

Reference for a preliminary ruling by the korkein oikeus
by order of that Court of 3 July 2002 in the case
of Anheuser-Busch, Incorporated against Budéjovicky´
Budvar, národní podnik

(Case C-245/02)

(2002/C 219/07)

Reference has been made to the Court of Justice of the
European Communities by order of
the korkein oikeus
(Supreme Court) of 3 July 2002, received at the Court Registry
on 5 July 2002, for a preliminary ruling in the case of
Incorporated against Budéjovicky´ Budvar,
Anheuser-Busch,
národní podnik on the following questions:

1.

If the collision of a trade mark and a sign alleged to
infringe it is situated at a point in time before the entry
into force of the TRIPS Agreement, do the provisions of
the TRIPS Agreement apply to the question of which
right has the earlier legal basis, when the alleged infringe-
ment of the trade mark is said to continue after the date
on which the TRIPS Agreement entered into force in the
Community and the Member States?

2.

If the answer to Question 1 is affirmative:

(a) Can the trade name of an undertaking also act as a
sign for goods or services within the meaning of
the first sentence of Article 16(1) of the TRIPS
Agreement?

(b)

If the answer to Question 2(a) is affirmative, on
what conditions may a trade name be regarded as a
sign for goods or services within the meaning of
the first sentence of Article 16(1) of the TRIPS
Agreement?

3.

If the answer to Question 2(a) is affirmative:

(b)

If the answer to Question 3(a) is affirmative:

How is the said reference in the third sentence of
Article 16(1) of the TRIPS Agreement to existing
prior rights to be interpreted in the case of a trade
name which is not registered or established in the
State in which the trade mark is registered and in
which protection is sought for the trade mark
against the trade name in question, having regard to
the obligation under Article 8 of the Paris Conven-
tion to afford protection to a trade name regardless
of whether it is registered and to the fact that the
permanent appellate body of the WTO has regarded
the reference in Article 2(1) of the TRIPS Agreement
to Article 8 of the Paris Convention as meaning
that WTO members are obliged under the TRIPS
Agreement to protect trade names in accordance
with the latter article? When assessing, in such a
case, whether a trade name has a legal basis prior to
a trade mark for the purposes of the third sentence
of Article 16(1) of the TRIPS Agreement, may it thus
be considered as decisive:

(i) whether the trade name was well-known at
least to some extent among the relevant trade
circles, in the State in which the trade mark is
registered and in which protection is sought
for it, before the point
in time at which
registration of the trade mark was applied for
in the State in question; or

(ii) whether the trade name was used in commerce
directed to the State in which the trade mark is
registered and in which protection is sought
for it before the point
in time at which
registration of the trade mark was applied for
in the State in question; or

(iii) what other factor may decide whether the trade
name is to be regarded as an existing prior
right within the meaning of the third sentence
of Article 16(1) of the TRIPS Agreement?

Action brought on 9 July 2002 by Portuguese Republic
against Commission of the European Communities

(Case C-249/02)

(2002/C 219/08)

(a) How is the reference in the third sentence of Article
16(1) of the TRIPS Agreement to existing prior
rights to be interpreted? May the right to a trade
name also be regarded as an existing prior right
within the meaning of the third sentence of Article
16(1) of the TRIPS Agreement?

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 9 July 2002 by the Portuguese Republic,
represented by Luis Fernandes, acting as Agent, and Carlos
Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
address for service in Luxembourg.