23.03.2016
The applicant has been producing the world-famous TV series "The Simpsons", in which a fictional beer called "Duff" is consumed. It is the proprietor who applied for registration on 9th June 2009 and whose CTM “Duff” was successfully registered on 26th March 2014. The respondent is the proprietor of the German trade mark “Duff BEER”, which has already been registered on 8th June 1999 for beer. The beer was brewed in Austria, then canned, labeled “Duff” and delivered to Germany and Switzerland.
The applicant sought to prohibit by interlocutory order the respondent from producing, promoting or establishing and applying for a permit in Austria using the character "Duff".
The lower court issued an injunctive relief. The court of appeal upheld the ban because the (older) German brand had no effect in Austria.
The Supreme Court of Austria dismissed the backup request of the applicant. It asserted that the defendant referred to the right to priority of their German brand, because it was older than the brand of the applicant. This meant that the defendant could potentially file for the retroactive annulment of the newer brand.
The enforceability of rights conferred by the CTM depends on the prior rights in national trade marks. Since the applicant's CTM could be annulled by the older German trademark of the respondent, the applicant cannot be successful with the application for an injunctive relief.
Therefore, no brand claims can be enforced.
Source: www.ris.bka.gv.at
https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20160127_OGH0002_0040OB00183_15P0000_000&ResultFunctionToken=abebd127-c9f4-4556-bb4f-db6092f2525c&Position=1&Gericht=&Rechtssatznummer=&Rechtssatz=&Fundstelle=&AenderungenSeit=Undefined&SucheNachRechtssatz=False&SucheNachText=True&GZ=4Ob183%2f15p&VonDatum=&BisDatum=23.02.2016&Norm=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte
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