On 15 June 2010, the Berlin Court of Appeal (Kammergericht Berlin) upheld the first instance decision of the Berlin Court issued on 22 April 2008 against Allgäuland-kasereien GMBH, i.e. one of the German companies which by their behaviour triggered a decision by the Court of Justice in Case C-132/05 (the Parmesan II case) brought by the European Commission against Germany.

Immediately after the ECJ ruling (issued on 26 February 2008), indeed, the association of Parmesan producers (Consorzio del Formaggio Parmigiano Reggiano) had obtained a positive decision of the Landsgericht Berlin, enjoining the German manufacturer from marketing, under the names ‘PARMESAN’, ‘BIO-PARMESAN’ or ‘PARMIGIANO’, cheeses that do not comply with the specifications of the PDO ‘Parmigiano Reggiano’. The decision also established fines up to Euro 250,000 for marketing German cheeses under the ‘Parmesan’ label.

The defendant Allgäuland-kasereien appealed, persisting in its view that ‘Parmesan’ was generic in Germany for hard cheese.

The Decision

The Court rejected the appeal by the German company and agreed with the Landsgericht Berlin that use of the name ‘PARMESAN’ and ‘BIO-PARMESAN’, let alone ‘PARMIGIANO’, for cheeses not complying with the strict Parmigiano Reggiano PDO specification, constitutes a violation of Article 13(1)(b) PDO Regulation and Article 135 Markengesetz, insofar as these terms evoke the ‘Parmigiano Reggiano’ PDO, as well as an act of Unfair Competition under Article 8(3)(2) of the German Unfair Competition Act.

The argument of the appellant that it had been marketing its products since as far back as 1987 under the term ‘PARMESAN’, i.e. before the first PDO Regulation of 1992, so as to be unable to evoke the “later” term Parmigiano Reggiano, was held irrelevant. Accordingly, the injunction preventing the defendant from selling and marketing grated cheese under the infringing names was confirmed.

Allgäuland-kasereien GMBH did not appeal the decision before the German Supreme Court, the Bundesgerichtshof, so that the above decision has now become res judicata.