Is BAYERISCHES BIER (translating as BAVARIAN BEER) a geographical indicator? The European verdict, on this European beer, is in.
The Court of Justice of the European Communities (ECJ) has recently had its say on the issue of beer, Bavaria, and geographical indicators. This is of particular interest here in Australia because we are still unsure exactly how s 61 of our Trade Marks Act, covering ‘geographical indicators’, is to be applied (this section states that a trade mark must not contain a geographical indicator). Although far from binding in Australia, this European decision may at least provide some guidance to courts in the future, since the European and Australian provisions are very similar, and indeed based on the same international agreement.
The ECJ had to decide whether a lower court had incorrectly concluded that “BAYERISCHES BIER” could be registered as geographical indicator.
What is a geographical indicator?
In both Australia and Europe, a geographical indicator is a sign indicating that the goods:
- originated in a particular region; and
- possess a specific quality, reputation or other characteristic attributable to that region.
Is BAYERISCHES BIER a geographical indicator?
First, the ECJ tackled the question of whether there was a direct link between Bavaria and beer of a particular quality. It was argued that there are two features of Bavarian beer, and that neither are now attributable to Bavaria. Those two features are:
- the Law on beer purity 1516 (this Bavarian law originally dictated that beer could only comprise of 3 ingredients – water, hops and barley)
- the traditional bottom-fermentation method originating in Bavaria
The ECJ accepted that since 1906 the Law of beer purity had spread throughout all of Germany, and further that the Bavarian brewing technique had since spread throughout the world. However, it was held that the basis of the registration as a geographical indicator was the reputation of beer from Bavaria – the above two factors contributed to that reputation, but the mere fact that they had spread beyond Bavaria did not destroy the reputation.
The extent to which the features peculiar to Bavarian beer had spread beyond Bavaria were relevant to whether the term BAYERISCHES BIER had become generic; that is, did the term now merely refer to a style or type of beer, rather than beer from a particular region? The answer – no. Bavarian beer was not yet generic, despite evidence that it (or translations of it) were used as synonyms for beer in Denmark, Sweden and Finland . It would only be deemed generic if the link between the product and the region had disappeared. This point had not yet been reached.
What does this mean for us locals down here in Australia?
Of course, the ECJ’s decision won’t bind Australian courts, but to the extent that notice of European decisions will be taken, it is good news for those producing cheese on King Island, wine in South Australia, or anything “natural” in Tasmania. It means that a reputation which a product shares with particular region will not be easily lost. In this way it is also good news for you and I as consumers – we are unlikely to, anytime soon, purchase a slab of King Island cheese only to find out that it is not a product of the untouched countryside of a secluded island, but has in fact been slapped together next door in Geelong. To this extent, it is fair to say that the decision is bad news for traders hoping to take advantage of the reputation that certain regions have for producing particular goods.
For an Australian Federal Court perspective on whether BAYERISCHES BIER amounts to a geographical indicator, see my earlier post,