I assume that now I have your attention. The European Court of Justice certainly has the attention of at least one innkeeper in Austria. In a remarkably obtuse opinion that almost seems a parody of the early-common-law contract and tort opinions found in law school casebooks, the ECJ decided… well, that is the problem, isn't it? As screwed up as opinions in American courts tend to be, they at least state how the abstract principles that may or may not be decided for the first time in the matter concern the facts presented. Instead, the ECJ presented us with this:
1. Article 28 EC and Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Council Regulation (EC) No 535/97 of 17 March 1997, do not preclude the application of a provision of a bilateral agreement between a Member State and a non-member country under which a simple and indirect indication of geographical origin from that non-member country is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented.
2. Article 28 EC precludes the application of a provision of a bilateral agreement between a Member State and a non-member country under which a name which in that country does not directly or indirectly refer to the geographical source of the product that it designates is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented.
3. The first paragraph of Article 307 EC is to be interpreted as permitting a court of a Member State, subject to the findings to be made by that court having regard inter alia to the criteria set out in this judgment, to apply the provisions of bilateral agreements such as those at issue in the main proceedings, concluded between that State and a non-member country and according protection to a name from the non-member country, even where those provisions prove to be contrary to the EC Treaty rules, on the ground that they concern an obligation resulting from agreements concluded before the date of the accession of the Member State concerned to the European Union. Pending the success of one of the methods referred to in the second paragraph of Article 307 EC in eliminating any incompatibilities between an agreement predating that accession and the Treaty, the first paragraph of that article permits that State to continue to apply such an agreement in so far as it contains obligations which remain binding on that State under international law.
Budejovický Budvar, národní podnik and Rudolf Ammersin GmbH, No. C-216/01 (18 November 2003).
On the other hand, this may be so obfuscatory to hide the court's embarrassment at deciding whether calling an imported "beer" "American Bud" is sufficiently distinct from the real Budweiser (brewed in the Czech Republic, from which Anheuser Busch took the name originally) so as not to infringe European trademark law. For anyone who actually has taste buds (not "Taste Buds," as that campaign ceased, has not been used in commerce for a period of five years, and therefore is no longer protectable), the underlying question is "Why?" With all of the superior brews available in Central Europe, who gives a rat's hair in the bottom of the barrel that is presumably filtered out before bottling?
In any event, this is another Old World/New World distinction. In this particular instance, there's no question but that the New World's practice eclipses that of the Old World. Say what you will about poor reasoning, florid and hypertechnical writing, and insane reliance on irrelevant precedent that no longer intersects with the societal context that are all too common in American judicature; at least one can figure out what the holding of the case really means. Or, at minimum, says.
If nothing else, Bud demonstrates that at least some aspects of the "advisory opinions doctrine"that US courts will not issue advisory opinions, but instead restrict themselves to resolving live disputeshave unforeseen value. That is exactly what Bud is: an advisory opinion. In the end, I seriously doubt that the ECJ's interpretation really helps either party conform its conduct to the law. IMNSHO, if an opinion does not do so, it is a worthless waste of dead trees (or, in this instance, dead trees and live translators).