Anheuser-Busch Inc. v. Budejovicky Budvar (1984)

Issues

• Can both AB and BB use the name “Budweiser”?
• Can the judge’s Section 12(2) discretion be challenged?
• Did the Court of Appeal dispose of AB’s Section 11 objection?
• Should the court exercise Section 12(2) discretion in BB’s favour?

Rules

• Two traders may use the same mark where their markets, reputations, or consumers are different and confusion is unlikely.
• Section 12(2) (Trade Marks Act, 1938) allows discretion to permit registration despite earlier marks, when fairness and consumer clarity support it.
• Trademark territoriality: protection is geographic; rights are judged by use and registration in that territory.

Facts (Timeline)

Anheuser-Busch (AB) brewed Budweiser in the USA since 1876.

Budejovicky Budvar (BB) brewed Budweiser in the Czech Republic since 1895.

Long-running global disputes over “Budweiser” continued through the 20th century.

In the UK, AB sued BB for trademark infringement and likely confusion.

Evidence showed distinct histories, reputations, and consumer bases in the UK.

The courts supported coexistence, finding no likely confusion.

Arguments

Judgment

The Court of Appeal upheld a coexistence outcome. The use of “Budweiser” by both companies in the UK did not create a likelihood of confusion. The court supported using Section 12(2) discretion in BB’s favour and addressed AB’s Section 11 objection in light of the evidence.

• Different reputations and markets reduced confusion risk.
• Territoriality matters: rights depend on UK conditions.

Ratio (Core Reason)

• No likely confusion given distinct consumer perceptions and trade channels.
• Section 12(2) allows discretionary coexistence when fair and clear to consumers.
• Territoriality: evaluate rights by the relevant territory, not global claims.

Why It Matters

The case teaches that the same mark can lawfully appear on different traders’ goods where consumer confusion is unlikely and the law allows coexistence. It is a classic on territoriality.

Key Takeaways

• Coexistence may be allowed under Section 12(2) where confusion is minimal.
• Markets and reputation shape the confusion analysis.
• Territoriality controls: registration and use are country-specific.

Mnemonic + 3-Step Hook

Mnemonic: “TWO BREWS, NO CONFUSE”

• TWO BREWS with shared name.
• NO CONFUSE because markets differ.
• 12(2) lets them CO-EXIST.

3-Step Hook:

1. Ask: Are the consumers/markets different?
2. Check: Is confusion genuinely unlikely?
3. Apply: Use Section 12(2) discretion for fair coexistence.

IRAC Outline

Issue: Can both AB and BB use “Budweiser” in the UK despite earlier rights?

Rule: Where confusion is unlikely and markets differ, Section 12(2) can permit coexistence.

Application: Evidence showed distinct reputations and consumers; confusion risk was low.

Conclusion: Coexistence approved; territoriality governs outcomes.

Glossary

Section 11

Ground to refuse registration that conflicts with earlier rights.

Section 12(2)

Discretion to allow registration despite earlier marks where fair and non-confusing.

Trademark Territoriality

Trademark rights are protected country by country, based on local law and use.

FAQs

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