A European legal decision concerning Bavarian beer could scupper Birmingham City Council’s hopes of trademarking the balti, intellectual property law firm Marks & Clerks has said.
In a recent decision, the European Court of Justice upheld the right of a Dutch brewery to make a beer called ‘Bavaria’, even though Bavarian beer has been given geographical protection.
The Dutch brewers have been at the centre of an eight-year trade mark dispute with Bayerischer Brauerbund, a German association of Bavarian brewers. The association’s Bayerisches Bier (”Bavarian beer”) has been granted geographical protection, but the ruling determined that these later rights could not be used to stop the Dutch brewers using the Bavaria name, which it has been doing since 1925 and with trademark protection since 1947.
Birmingham City Council has said it is interested in trademarking the balti – allegedly first created in Birmingham – to stop Indian restaurants outside the city selling the dish.
But Rebecca Tew, a partner at the Birmingham office of IP specialists Marks & Clerk, 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.
"Geographical protection means that if a product is manufactured correctly in the given region, the producer has the right to use the name of that region to describe its products. This may be the case, even if the name enjoys trademark protection. The decision demonstrates that the strong protection for geographical terms cannot necessarily be used to cancel out earlier rights that brand owners have legitimately sought to protect.
“The courts have also reaffirmed the geographical protection afforded to the name Bavaria. No other producer will be able to use the 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 German brewers.”
This latest decision follows in the wake of a number of geographical indication disputes. Since 2001, the European Union has awarded protection to many regional food and drink products.