European community law on free movement of goods
| Pages | 55-65 |
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international law update Volume 18, July–September 2012
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
of reply, that there was adverse eect. After all, the
literal meaning of the words of section 5(1) are
absolute. It is only judicial interpretation, both in
the Court and in our domestic courts, which has
put a gloss on the words of the EU and domestic
legislation in order to make the provisions workable
in a sensible commercial way. Even if Jacob LJ is
right to say that the new trial would be caused by the
fact that AB failed to put its case at the rst trial, I do
not, for my part, consider that the circumstances are
such that it would be unjust to allow AB to amend
and to adduce further evidence.”
42. “But before that can happen, I would
need to be persuaded that at least, in theory, there
could be evidence of some sort to support a claim
of adverse eect. In that context, evidence of
confusion would, in my judgment, be insucient.
However much evidence of confusion is adduced, I
do not see how that could, in the light of the earlier
cases, be sucient to establish any impairment of
the guarantee of origin given the unstated premise
in Mr Bloch’s submissions identied by Jacob LJ in
paragraph 22 of his judgment.”
43. “In any case, AB has known since the service
of the Grounds of Appeal that honest concurrent
use was being relied on by BB in the context of
section 5(1) ; it has known since the decision of the
Court on 22 September 2011 that it might need
to show adverse eect armatively. And yet it has
not, notwithstanding this passage of time, given this
court any hint about how such adverse eect might
be established or the nature of the evidence which
might be adduced to establish such adverse eect.
I do not consider that we should remit the matter
to the Registry without at least knowing in outline
the nature of the evidence which AB would want to
adduce. It is now too late for us to be told.”
Lord Justice Ward:
44. “I agree the appeal should be allowed.”
: Budejovicky Budvar Narodni Podnik(BB)
v. Anheuser-Busch, Inc.(AB), [2012] EWCA Civ. 880;
2012 WL 2499981 (U.K.Ct. App. (Civ.Div.) July 3,
2012).
EUROPEAN
COMMUNITY LAW
ON FREE MOVEMENT
OF GOODS
I S M
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1. [Opinion for the United Kingdom Supreme
Court by Lord Sumption, JSC] “is is another
case arising out of the economically controversial
but legally well established policy of the European
Union relating to parallel imports of genuine goods
bearing registered trade marks. Broadly stated, *2029
the question at issue is whether a person who has
imported goods bearing the mark into the EEA and
oered them for sale there without the consent of the
trade mark proprietor, is entitled to defend an action
for infringement on the ground that the proprietor
of the mark is engaged in conduct calculated to
obstruct the free movement of such goods between
member states or to distort competition in the EEA
market for them.”
2. “Ever since the Trade Marks Act 1994 gave
eect in the United Kingdom to First Council
Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the member states relating
to trade marks ( OJ 1989 L40, p 1), the rights of
proprietors of registered trade marks have been
governed by a uniform scheme of EU law.”
“at Directive has now been replaced by the
current Directive 2008/95/EC of the European
Union and of the Council of 22 October 2008 to
approximate the laws of the member states relating
to trade marks ( OJ 2008 L299, p 25), but the two
Directives are in the same terms in every respect
relevant to the present dispute. I shall refer to them
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