Judgment_paragraph 79 · Budějovický Budvar, národní podnik and Anheuser-Busch, Inc. v European Union Intellectual Property Office (T-57/04, T-71/04)

79As regards the French legislation applicable here, Anheuser-Busch considers that Budvar's submissions throughout the various proceedings have been contradictory and unclear. Before OHIM, the opposition was based predominantly on the fourth paragraph of Article L. 641-2 of the Rural Code. When the Board of Appeal rejected the opposition on that basis, Budvar changed its view and stated, for the first time, that the fourth paragraph of Article L. 641-2 of the Rural Code did not apply (maintaining instead that Articles L.711-3 and L.711-4 of the Intellectual Property Code should be applied). Anheuser-Busch argues that that change of view and the contradictory presentation of the legal situation in France in themselves justify the dismissal of the present action. In particular, Anheuser-Busch maintains that Budvar is prevented from changing the legal basis of the claim at this stage of the proceedings and that the arguments submitted in that regard before the Court should be disregarded. That would be in line with the relevant practice of the Court (Case T-129/01 Alejandro v OHIM — Anheuser-Busch (BUDMEN) [2003] ECR II-2251, paragraph 67, and Case T-10/03 Koubi v OHIM — Flabesa (CONFORFLEX) [2004] ECR II-719, paragraph 52).

Budějovický Budvar, národní podnik and Anheuser-Busch, Inc. v European Union Intellectual Property Office (T-57/04, T-71/04)

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