November, 2005

trademark BUDWEISER
Anheuser-Busch, Inc. v. Portugal

On July 23, 2001, under article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms "the Convention", the North American company Anheuser-Bush, Inc. (AB) submitted a petition at the European Court of Human Rights (ECHR) against the Portuguese State.

AB challenged the Portuguese Supreme Court of Justice decision which on January 23, 2001 refused to AB the Portuguese trademark application Nº 211.728 BUDWEISER (word mark) for beers, in class 32.

The Portuguese Supreme Court of Justice has considered namely that Ceskebudejovicky Budvar (in German Budweis or Budweiss), is protected for beers in Portugal, due to the Bilateral Agreement about the Protection of Indications of Origin, Appelations of Origin and other Geographical Denominations made between Portugal and the Socialist Republic of
Czechoslovakia, on January 10th 1986 and that entered into force in 1987.

AB alleged that, by enforcing the provisions of the Bilateral Agreement dated 1986, the Portuguese Supreme Court of Justice confiscated or expropriated the trademark No 211.728 BUDWEISER which had been filed at the Portuguese Patent and Trademark on March 19, 1981 that is 6 years before the Bilateral was enacted.

AB further sustained that a trademark application, although not yet granted by a final decision, should be considered as an "asset", according to Art. 1 of the Protocol No 1 to the "Convention".

Thus, the Portuguese Supreme Court decision should be considered as a confiscation or expropriation of their "asset" - the trademark BUDWEISER.
However, by decision issued on October 11, 2005, the ECHR held that:
· the trademark BUDWEISER is well known worldwide and has a certain economic value;
· for this reason there's no doubt that a trademark is an "asset", according to the provision of Art. 1 of the Protocol No 1;
· however a trademark can only be considered as an "asset" after registration is granted by a final decision according to the applicable rules of the State where the registration was applied for;
· before the registration is granted by a final decision, all the applicant has is a hope in obtaining such an "asset", but not a legitimate hope protected by the law;
· in this regard it's not relevant that the Bilateral Agreement (the cause for the rejection of the trademark application nº 211.728 BUDWEISER), was enacted after the trademark nº 211.728 BUDWEISER was filed. In fact, at the time this Agreement was enacted, the applicant did not have any "asset" yet;
· therefore the Portuguese Supreme Court of Justice decision cannot be qualified has an interference with AB rights.