Argentine Beer War: decision in favor of C.A.S.A. Isenbeck affirmed

On December 17th, 2004, Courtroom III of the National Court of Appeals in Criminal Matters affirmed two decisions taken by the Courtroom I of the Federal Court in Criminal and Correctional Matters, which on March 5th and April 21st, respectively, established that neither C.A.S.A. Isenbeck, a subsidiary of the German company Warsteiner Brauerei Haus Cramer, nor its executives had infringed the trademark law by mentioning the Quilmes trademark in an advertisement published in different Argentine graphic media during the Soccer World Cup 2002 held in Japan, or disobeyed the precautionary measure issued by a civil judge as a consequence of the war between both beer companies initiated by the television spots ?Parents? and ?Friends?, and which forbade Isenbeck to mention the Quilmes trademark.

Although in both decisions the Court of Appeals in Criminal Matters based the affirmation of the decisions in favor of Isenbeck on the statute of limitations, the judge of the Courtroom III, Amelia Berraz de Vidal, when referring to the alleged trademark infringement ruled that ?the reported conduct does not constitute the crime prosecuted only by the government on its own initiative subject matter of the complaint.?

The complaints filed by Cervecería y Maltería Quilmes S.A., owner of the Quilmes trademark, against C.A.S.A. Isenbeck for the graphic advertisement informing the partial acquisition of Quilmes by the Brazilian giant Am Bev (Brahma) by means of a graphic advertisement published during the World Cup 2002, which said ?The Brazilians bought Quilmes, just before the World Cup?? and played with the Quilmes beer bottle top and the colors of the Brazilian flag, had already been dismissed by the Federal Trial Courts in Criminal and Correctional Matters IV, Clerk?s Office VII (trademark infringement) and X, Clerk?s Office XIX (disobedience) and by Courtroom I of the Federal Court of Appeals in Criminal Matters (both cases).

The affirmed decisions, by considering comparative advertising lawful and expressly extending the freedom of speech without prior censorship to commercial and advertising matters, are not only significant for the remaining litigation between both Argentine beer companies, but also sets a precedent on some highly controversial issues.

C.A.S.A Isenbeck was represented in both proceedings by criminal attorneys Diego Fernández Alonso and Manuel Beccar Varela, from Fernández Alonso & Beccar Varela firm, while Fabián Rodríguez Simón, partner of Llerena & Asociados Abogados, is in charge of the general management of the legal strategy, with the collaboration of associates Francisco Canese Mendez and María Jenkins.

Cervecería y Maltería Quilmes S.A. was represented in the criminal complaint for trademark infringement by Enrique José Francisco Gatti and Julio Francisco Lago, partners of Sena & Berton Morenothe, a law firm specialized in trademarks; and in the criminal complaint for disobedience by Sergio A. Pizarro Posse and Rodolfo Tahilade, partner and associate, respectively, of the Criminal Law Firm Pizarro Posse & García Santillán.