APPLICATION TO FILE NOTICE OF OPPOSITION IN A GEOGRAPHICAL INDICATION APPLICATION BY BAVARIA N.V. AND OBJECTION THERETO BY BAYERISCHER BRAUERBUND E.V.
An Interlocutory hearing, related to the opposition between BAVARIA N.V., (the Opponent) and BAYERISCHER BRAUERBUND E.V. (the Applicant) took place on 19 August 2019, following the Principal Assistant Registrar’s rejection of the Notice of Opposition filed. The decision of the interlocutory hearing was made on 9 November 2020 by the hearing officer.
The Applicant, BAYERISCHER BRAUERBUND E.V. is the umbrella organization of the Bavarian brewing industry and has the purpose of perceiving and promoting the common interests of the entire Bavarian brewing industry. It has affiliated breweries of all sizes from all regions of Bavaria. Meanwhile, the Opponent is a producer and distributor of alcoholic and non-alcoholic beverages, with customers worldwide.
On 24 May 2019, the Opponent filed a Notice of Opposition (NOP) supported by the Statutory Declaration of Peter-Jan Joost Marie Swinkels dated 22 May 2019. However, the Principal Assistant Registrar (PAR) was inclined to reject the NOP as the Opponent’s Statement of Ground did not appear to set out any grounds for refusal of registration of the GI as provided in Section 41 of the Geographical Indications Act 2014. The Opponent instead had complaints directed against “Bavarian Beer”, which it alleged is the English translation of the GI applied for.
According to the PAR, Section 41 of the GIA as referred to in the Statement of Grounds does not extend to a GI’s translations, as Section 4(6)(b) of the GIA (which pertains to translations) was not yet in force as at the Opposition Filing Date, as well as at the Hearing Date which would render the Notice of Opposition (and the Statement of Ground) nugatory.
Therefore, the PAR rejected the NOP on the basis that the Opponent was seeking to oppose an alleged right of the Applicant’s which was not in existence as at the Opposition Filing Date (and the Hearing Date).
Consequently, the main issue in the interlocutory hearing was the requirements for a successful filing of a notice of opposition under the Geographical Indications Rules 2019 (GIR), in particular, whether the NOP should be allowed as long as all the procedural requirements for filing have been complied with, or if it was also necessary to examine whether the grounds relied on would be sufficient to succeed in the opposition.
As the determination of the above issue depended on how Rule 28 of the GIR is interpreted, the hearing officer set it out in full in her decision and referred to it in detail. Additionally, the Opponent relied on Application by OOO “TVM Trade” To Strike Out Notice of Opposition and Objection Thereto by Societe Des Produits Nestle SA [2014] SGIPOS 12 (“Nestle”), which was a case broadly pertaining to striking out. The Nestle case highlighted that:
(a) there is no express legislative provision [in the GI legislation] giving IPOS the power to strike out a notice of opposition;
(b) there is no provision [in the GI legislation] which confers this power on IPOS as part of its inherent jurisdiction;
(c) the lack of recourse by an opponent to an appeal from a decision by IPOS to strike out a notice of opposition is a strong indication that IPOS does not have this power.
The Hearing Officer indicated that the parties made substantial submissions to her at the interlocutory hearing; the Opponent’s written submissions spanned 30 pages while the Applicant’s spanned 34 pages (including rebuttals but excluding annexes). As for the bundles of authorities, the Opponent tendered 2 volumes, totalling 376 pages while the Applicant tendered 2 volumes as well as a further a bundle, totalling 683 pages
Following the submissions from both parties, the hearing officer explained that she does not think it is necessary to debate upon such substantial and important issues pertaining to the scope of the right granted to the Applicant (and opposed by the Opponent) at this stage of proceedings, in an interlocutory hearing intended to resolve procedural defaults.
She clarified that the issue on ‘whether the opposition should be directed at the GI itself, and not a translation of the GI’ should be dealt with at a full hearing, especially since there would be a lack of recourse by the Opponent to an appeal for the purposes of this interlocutory hearing.
Taking into account the above and the submissions by both parties, the Hearing Officer declared that she is of the view that the Notice of Opposition should be allowed as long as all the procedural requirements for the filing of a Notice of Opposition as per the GIR have been complied with. As a result, she agreed with the Opponent that Rule 28 of the GIR has been complied with – as the subject matter of the Opposition has been duly identified in the Statement of Grounds.
Accordingly, the Hearing Officer confirmed that the NOP was valid, and directed the Applicant to file its Counter-Statement and supporting documents within 6 weeks from the date of the decision, i.e. on or before 21 December 2020.
Currently, the opposition between the parties is ongoing.
To view the Grounds of Decision, click here.
By: Prathashini Rague, Biro Oktroi Roosseno Singapore