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Battle over beer brand names comes to a head
When Johannes Swinkels changed the name of his family-run brewery to Bavaria in 1928 he could have had little inkling of the legal battles he was bequeathing his 21st century successors.
Since then the beer that shares a name with the region of southern Germany has been produced at the same site outside the village of Lieshout in the flat farmlands of the southern Netherlands. The brewery with its green bottles has prospered, but for the past decade the regular arrival of couriers delivering legal documents has punctured the rustic calm.
A federation representing 650 breweries from the German state of Bavaria has pursued the Dutch brewer through courts in Germany, Italy and Spain, seeking to use European Union rules that protect Parma ham as Italian and Feta cheese as Greek to force the Dutch company to abandon its brand name. The latest twist is expected today in a judgment by the EU's highest court in Luxembourg, which is set to rule on whether the geographic protection afforded to the concept of Bavarian beer can trump a pre-existing trademark.
"Until now the line has been that geographical protection has been enforced," says Michel Chatelin, a partner at the Amsterdam office of Eversheds, the law firm.
But a legal opinion by one of the court's advocate generals in December has given Bavaria some grounds for optimism in its battle. "Perhaps now the court will set a limit with regard to this geographical protection," says Mr Chatelin.
The EU law that created the rules on protecting names of foods linked to places came into force in 1992. It has since been used to restrict the production of Prosciutto di Parma to Italy's Parma region and placed restrictions on the use of names linked to hundreds of other foodstuffs with links to specific regions. Bavaria argues that its case is different.
"Bavaria is and was just a reference to the brewing technology," says Peer Swinkels, great-grandson of Johannes, who sits on the company board, which is mostly made up of the seventh generation of Swinkels running the company.
Ironically, it may have been a German master brewer, Georg Kraus, who urged Johannes and his three sons to change the company name to Bavaria. The idea was to emphasise that their new brewery had switched production from traditional Dutch ales to the low fermentation lager brewed the Bavarian way that was growing in popularity in the 1920s.
"The most important asset of our company is our brand," Mr Swinkels says. "We invested hundreds of millions and now they are trying to have a free ride on our success."
The brewers of Bavaria won the protection of the EU rules for "Bayerisches Bier", or Bavarian beer, in 2001 although they started the registration process in 1992. Bavaria says it was first informed of the process in 1997.
The argument that Bavaria, the Dutch brewer, existed long before the EU or its geographical protection laws does not wash in Munich.
"We're fighting against the trademark Bavaria because we know that a lot of people think they are drinking Bavarian beer if they see Bavaria on a beer bottle," says Lothar Ebbertz, executive manager of the Bavarian Brewers' Federation.
Today's ruling by the European Court of Justice comes after an Italian court referred the case to Luxembourg and could have a bearing on the Bavaria case and other local-naming disputes. "Our further behaviour all over Europe depends on the decision of the European court," says Mr Ebbertz.
For its part Bavaria, which since 1995 has added the word Holland to its bottles, says there can be no question that it is seeking to trick its drinkers. "We promote Holland," says Johannes van der Veen, another board member.
Gerard van der Wal, who has represented Bavaria as a lawyer since 1997, says some form of mutual coexistence has always been the brewer's best hope since a full reversal of the local-naming rules would be "doomed to fail for political reasons".
By Michael Steen in Amsterdam, Published Financial Times: July 2 2009 03:00
Related article:
Dutch brewer wins right to call its beer Bavarian (Times Online)