On 7 May 2009, Advocate General Sharpston delivered her Opinion in ECJ Case C-446/07, (Grandi Salumifici Italiani SpA v The Emilia-Romagna region) following a reference for a preliminary ruling from the Modena Civil Court on the interpretation of the Regulation no. 2081/92, now Regulation no 510/2006, on the protection of geographical indications and designations of origin (‘PGI Regulation’). The facts were as follows: Grandi Salumifici Italiani SpA (‘GSI’) produces a salami sausage marketed as Salame Felino’ and/or ‘Salame tipo Felino’. Originating in Felino, Salame di Felino is considered one of the finest types Italian salami being coarsely cut and flavoured with black peppercorns and white wine. GSI had been producing this salami in Modena since around 1970. The municipality of Felino is located in the Italian region of Emilia-Romagna, in Parma area, and Modena is also located in Emilia-Romagna some 50 km from Felino.

Following submissions from the Association for the Protection of Salame Felino and the Meat Industry Association, an application was made for recognition of ‘Salame Felino’ as a Protected Geographical Indication (PGI) under the PGI Regulation. To date, that application had not yet led to the registration as a PGI of the name. On 16 May 2006 the Emilia-Romagna region imposed an administrative fine on the GSI on the basis that it was using the name ‘Salame tipo Felino’ on its labels in such a way as to mislead consumers. GSI applied to the Court of Modena, seeking a ruling to overturn the administrative fine on the grounds that the name ‘Salame Felino’ was generic and had been used for a substantial number of years and in good faith outside the municipality of Felino, including in respect of a collective trade mark.

The Court stayed the proceedings and referred the matter to the ECJ requesting the European Court to clarify whether a geographical name for which the submission of an application for registration as a PGI has been rejected or blocked, must be considered generic throughout the period for which such rejection or blocking remains effective. Secondly, the Court of Modena asked for clarification on whether the name of a foodstuff which is evocative of a place, but which is not registered as a PDO or PGI, may be legitimately used by producers who have used it in good faith and in an uninterrupted manner for a considerable period since before the entry into force of the PGI Regulation.

Advocate General Sharpston suggested that, in response to the first question, the Court should hold that a national court cannot assume, while a name is undergoing the registration process, that it is generic unless and until the Commission finds it to be so. Therefore, a name cannot be assumed to be generic within the meaning of the PGI Regulation until an application for protection of the name has been rejected by the Commission on the ground that the name has become generic. Likewise, there can be no assumption, while a name is undergoing the registration process, that the name is not generic within the meaning of the PGI Regulation.
Furthermore, with regard to the second question, AG Sharpston advised the ECJ to rule that the name of a food product which is evocative of a place, but not registered as a PGI, may legitimately be used provided that the name is not used in a way which is likely to mislead the average reasonably well-informed, observant and circumspect consumer. In assessing whether that is the case, national jurisdictions may have regard to the length of time during which the name has been used, the good faith (or otherwise) of the producer is, however, not to be taken into consideration.

An ruling from the ECJ is expected in a couple of months.