Dutch Bavaria beer keeps name despite German geographical protection

03 July, 2009

The European Court of Justice (ECJ) has upheld the right for Dutch brewers, Bavaria NV, to produce and market their 'Bavaria' beer in Italy, despite the fact that German Bavarian beer enjoys geographical protection.

The Dutch brewers were at the centre of an eight-year trade mark dispute with Bayerischer Brauerbund, a German association of Bavarian brewers. Its Bayerisches Bier (”Bavarian beer”) has been granted geographical protection, yet today’s ruling determined that these later rights could not be used to stop the Dutch brewers’ use of the Bavaria name, which it has been doing since 1925, and under trademark protection since 1947.

Kirsten Gilbert, a solicitor at intellectual property firm Marks & Clerk Solicitors, said: “The ECJ has made clear that these two brands must peacefully co-exist in a sensible, pragmatic decision that recognises the earlier rights to the Bavaria name. Considerable time, effort and money are spent in building up a brand, which its owners were no doubt anxious to protect. However, the difficulty with geographical indicators and trademark rights is that the two can come into direct conflict with one another. Geographical protection means that if a product is manufactured correctly in the given region, the producer has the automatic right to use the name of that region to describe its products. This may be the case even if the name enjoys trademark protection. Today’s decision demonstrates that the strong protection for geographical terms cannot necessarily be used to cancel out earlier rights that brand owners have legitimately and successfully sought to protect.

“In making this ruling, the courts have also reaffirmed the geographical protection afforded to the name Bavaria. This means no other producer will be able to use the Bavaria name unless its beer conforms to the rules surrounding its regional production. Bavaria NV was successful on the basis that its rights predated those of the German brewers.”

 The case had been referred to the ECJ following a previously successful ruling in favour of the German brewers, which prompted Bavaria NV to appeal. In its referral, the Italian national court asked for clarification on how to treat similar brand names which predated EU laws relating to geographical protection. The case will now be referred back to the national courts.



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