The key points of the Opinion in Case C-393/16, which was published on 20th July 2017, are:
- Products containing Champagne as an ingredient might not be offered under the protected designation of origin (PDO) if there is a risk that the reputation of the PDO is exploited.
- It is up to the national court to assess if use is legitimate.
- Factors for this assessment are: whether the ingredient gives the product its “essential characteristic”; the elements used on the packaging and labelling of the product and the impression of the name and presentation of the product on the normally informed, reasonable observant and circumspect European average consumer, namely, if this consumer might come to the conclusion that the product has the quality and enjoys the reputation of the PDO.
Background to the case
The German discounter ALDI used the name “Champagner Sorbet” in 2012 for a sorbet dessert containing 12% of “real” Champagne.
This product was offered with the packaging shown above.
The Comité Interprofessionnell du Vin de Champagne (CIVC), the trade association representing Champagne makers, sued ALDI for infringement and was successful in the first instance court in Germany. The second instance court (Oberlandesgericht München) overruled the decision by finding that use of the name “Champagner” did not exploit the reputation of the PDO “Champagne”. The German Federal Court of Justice (Bundesgerichtshof) referred the case to the Court of Justice of the European Union for a preliminary ruling.
Opinion of the Advocate General
In his opinion, the Advocate General states that the use of the PDO might be justified if there exists a legitimate interest such as a prior right, if the use corresponds with a legal requirement (such as requirements of foodstuff labelling law) or if the use of the protected designation is innocuous. However, the sole fact that “Champagner Sorbet” is the common name for the product in Germany is not sufficient to justify a legitimate interest.
The court will have to consider if the presentation of the product was chosen in order to create a mental link to the reputation of “Champagne” whose quality shall be transferred to the sorbet. In the Advocate General’s opinion the graphical elements on the packaging contribute to increase the reference to the PDO “Champagne”. The Advocate General further makes clear that the protection of a PDO is not only restricted to cases where consumers are misled about the geographical origin of a product.
The final decision from the CJEU is to be expected within the next few months.
The Advocate General’s opinion is not yet published in English but can be read in Spanish, French and German.
Karin Lochner is an attorney-at-law with Grünecker in Munich and a member of the MARQUES GI Team
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