Anheuser-Busch, Inc. v Controller of Patents

• Jurisdiction: Ireland
• Judgment Date: 23 October 1996
• Date: 23 October 1996
• Docket Number: [1995 No. 521 Sp]
• Court: High Court

Anheuser-Busch, Inc. v. Controller of Patents

Anheuser-Busch, Incorporated

Plaintiff

and

The Controller of Patents, Trade Marks and Designs and Budweiser Budvar, National Corporation

Defendants

[1995 No. 521 Sp]

High Court

Trade mark - Register of trade marks - Application to have registered trade marks expunged from register - Alleged non-use of registered trade marks - Nature of evidence supporting application - Trade Marks Rules, 1963 (S.I. No. 268) - Trade Marks Act, 1963 (No. 9) ss. 34 and 57.

Evidence - Standard of proof - Application to have registered trade marks removed from register - Alleged non-use of registered trade marks - General averment of non-use - Lack of detailed evidence regarding nature and extent of investigations into alleged non-use - Whether sufficient evidence to establish prima facie non-use - Rebutting evidence of second defendant - Irrelevancy of rebutting evidence - Whether plaintiff thereby entitled to claim sufficient evidence of no- use.

Section 34 of the Trade Marks Act, 1963, provides that a registered trade mark may be removed from the register of trade marks on grounds of non-use.

Section 57 of the Act of 1963 provides for an appeal in such matters to the High Court.

The plaintiff was the proprietor in the United States and elsewhere throughout the world of the "Budweiser" trade mark. It was unable to obtain registration of its trade mark in Ireland due to the existence on the Irish register of two trade marks in the name of the second defendant.

On the 3rd September, 1980, the plaintiff applied, pursuant to s. 34 of the Trade Marks Act, 1963, to have the second defendant's trade marks expunged from the register on grounds of non-use. The second defendant filed a counter statement denying the plaintiff's claim, stating inter alia that its trade marks had been extensively used in other countries. The plaintiff then filed an affidavit wherein it was averred in general terms that notwithstanding various investigations and enquiries there was no evidence of use by the second defendant of its trade marks in this jurisdiction. The second defendant filed a replying declaration which cited only one example of use of the trade marks within the jurisdiction.

In a decision issued by the first defendant on the 23rd October, 1985, the plaintiff's claim was dismissed. No reasons were given. In subsequent judicial review proceedings the first defendant was ordered to furnish in writing the reasons for his refusal of the plaintiff's application (see [1987] I.R. 329). These grounds were furnished on the 19th June, 1995. It was stated therein that the plaintiff had failed to satisfy the requisite standard of proof to establish a prima facie case of non use. Emphasis was placed on the vagueness of the plaintiff's evidence and its failure to specify the nature and extent of any investigations carried out to establish non-use of the trade marks in question.

The plaintiff appealed this decision to the High Court pursuant to s. 57 of the Act of 1963.

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