Anheuser-Busch Inc v Budejovicky Budvar

FEDERAL COURT OF AUSTRALIA

Anheuser-Busch, Inc v Budějovický Budvar, Národní Podnik & Ors [2002] FCA 390

NG 194 of 1998

ALLSOP J
5 APRIL  2002

SYDNEY

SUMMARY

1.In accordance with the practice of the Federal Court in certain cases of public interest, I have prepared this brief summary to accompany the reasons for judgment that are being delivered today.  This summary is necessarily incomplete; the only authoritative pronouncement of my reasons is that contained in the full reasons for judgment.

2.One further reason for providing this summary is that the evidence discloses that both the applicant and the first respondent, from time to time, in their struggle with each other in various jurisdictions in the world, have employed press releases to advance their own positions.  In order to avoid things that I have said being taken out of context, I thought it appropriate to summarise briefly some of my findings.

3.The proceedings were brought by the applicant against three respondents.  The case proceeded only against the first respondent.  The applicant is a United States corporation and the first respondent is a Czech corporation.  Each manufactures and exports beer.  The applicant manufactures and exports ‘Budweiser’ beer.  It has trade marks in Australia for, amongst other things, the words ‘Budweiser’ and ‘Bud’.  The first respondent also sells beer with labels bearing the words ‘Budweiser’ and ‘Budweiser Budvar’ in some parts of the world.  In other parts of the world its beer is sold under the label ‘Budějovický Budvar’.  Depending on the origin and language of the reader of the label, the syllable ‘Bud’ may be pronounced ‘bud’ as in ‘mud’ or ‘bud’ as in ‘good’.  Also depending on the language or origin of the reader of the label, the ‘w’ may be pronounced as a ‘v’ or a ‘w’.  The first respondent manufactures beer in a city in the Czech Republic where beer has been manufactured for over seven centuries.  It is a town which is called Budweis, in German.  It is called České Budějovice, in Czech.  In German, the word ‘Budweiser’ is the adjectival form of the proper noun ‘Budweis’, meaning ‘of or from Budweis’.  In Czech, the word ‘Budějovický’ is the adjectival form of the proper noun ‘Budějovice’, meaning ‘of or from Budějovice’.  

4.This litigation is one of a number of proceedings all around the world in which the applicant and the first respondent have fought, and are fighting, over trade marks and trade mark uses of various words.

5.In these proceedings much of the dispute concerned whether the first respondent’s desire to sell its beer in this country under the brand or label ‘Budějovický Budvar’ was legitimate.  I have found that the use of that phrase, in the manner in which it has been used, and in which it is proposed to be used, in Australia, as a trade mark on specific containers, is not, and would not be, an infringement of any trade mark of the applicant, and would not amount to either passing-off or a contravention of…