CELEX: C2002/219/07
Language: en
Date: 2002-09-14 00:00:00
Title: 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

C 219/4                 EN                    Official Journal of the European Communities                                     14.9.2002
2.    Is it of importance as regards the acceptability of discon-              (b) If the answer to Question 3(a) is affirmative:
      tinuing the procedure that the content of the invitation
      to tender is defective because of the incorrectness of the                   How is the said reference in the third sentence of
      assessment previously made by the contracting authority?                     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
( 1) OJ L 199, p. 1.                                                               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
Reference for a preliminary ruling by the korkein oikeus                           to Article 8 of the Paris Convention as meaning
by order of that Court of 3 July 2002 in the case                                  that WTO members are obliged under the TRIPS
of Anheuser-Busch, Incorporated against Budéjovický                               Agreement to protect trade names in accordance
                     Budvar, národní podnik                                        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
                          (Case C-245/02)                                          of Article 16(1) of the TRIPS Agreement, may it thus
                                                                                   be considered as decisive:
                          (2002/C 219/07)                                          (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
Reference has been made to the Court of Justice of the                                   for it, before the point in time at which
European Communities by order of the korkein oikeus                                      registration of the trade mark was applied for
(Supreme Court) of 3 July 2002, received at the Court Registry                           in the State in question; or
on 5 July 2002, for a preliminary ruling in the case of
Anheuser-Busch, Incorporated against Budéjovický Budvar,                          (ii)  whether the trade name was used in commerce
národní podnik on the following questions:                                               directed to the State in which the trade mark is
                                                                                         registered and in which protection is sought
1.    If the collision of a trade mark and a sign alleged to                             for it before the point in time at which
      infringe it is situated at a point in time before the entry                        registration of the trade mark was applied for
      into force of the TRIPS Agreement, do the provisions of                            in the State in question; or
      the TRIPS Agreement apply to the question of which
      right has the earlier legal basis, when the alleged infringe-                (iii) what other factor may decide whether the trade
      ment of the trade mark is said to continue after the date                          name is to be regarded as an existing prior
      on which the TRIPS Agreement entered into force in the                             right within the meaning of the third sentence
      Community and the Member States?                                                   of Article 16(1) of the TRIPS Agreement?
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?
                                                                         Action brought on 9 July 2002 by Portuguese Republic
                                                                             against Commission of the European Communities
      (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                                     (Case C-249/02)
            the first sentence of Article 16(1) of the TRIPS
            Agreement?                                                                           (2002/C 219/08)
3.    If the answer to Question 2(a) is affirmative:
      (a)   How is the reference in the third sentence of Article        An action against the Commission of the European Communi-
            16(1) of the TRIPS Agreement to existing prior               ties was brought before the Court of Justice of the European
            rights to be interpreted? May the right to a trade           Communities on 9 July 2002 by the Portuguese Republic,
            name also be regarded as an existing prior right             represented by Luis Fernandes, acting as Agent, and Carlos
            within the meaning of the third sentence of Article          Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
            16(1) of the TRIPS Agreement?                                address for service in Luxembourg.