Log in

CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

Want to receive Class 46 by email?
Click here subscribe for free.

Who we all are...
Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
MONDAY, 22 JANUARY 2018
CJEU decision in the "Champagner Sorbet" case

The CJEU recently clarified the ‘conditions’ of using the Protected Designation of Origin (PDO) for "Champagne" on a product which is not Champagne but which contains a certain percentage (here: 12%)  of Champagne. (Comité Interprofessionnel du Vin de Champagne Aldi Süd Dienstleistungs-GmbH & Co OHG (C-393/16), 20 December 2017).

The case

Comité Inteprofessionnel du Vin de Champagne (CIPV), an association of champagne producers, brought proceedings against German discounter Aldi Süd to prohibit it from selling a sorbet under the name ‘Champagner Sorbet’ which only contained 12% champagne. (Champagner is the German word for champagne.)

While CIPV succeeded at first instance, the second instance court in Munich saw things differently and found that use of the sign “Champagner” did not exploit the reputation of the PDO for “Champagne”. On further appeal, the German Federal Court of Justice (Bundesgerichtshof) referred the case to the CJEU for a preliminary ruling in order to clarify the "conditions" under which it would be allowed for a food operator to use the protected term ‘Champagne’ on a product which is not Champagne but which contains Champagne.

Decision

The CJEU held that the unlawful exploitation of the reputation of a PDO entails use of the PDO that seeks to take undue advantage of its reputation. The CJEU further found held that the name used by Aldi Süd "Champagner Sorbet" was liable to extend the reputation of the PDO Champagne to that product. However, the CJEU also held that the sorbet product in question may be sold under name ‘Champagner Sorbet’ if it is one of its essential characteristics, i.e. if it has a taste attributable primarily to champagne. If so, then the product name did not take undue advantage of the PDO ‘Champagne’ and could be used.

The CJEU explained that the name ‘Champagner Sorbet’ if used on the inner or outer packaging of the product could theoretically constitute a false or misleading indication and would thus fall foul of Article 118m Regulation (EU) No 1234/2007 (now: Article 103 Regulation (EU) No 1308/2013).

Moreover, the CJEU made clear that while the quantity of champagne in the sorbet is significant, it is not in itself sufficient to determine an undue advantage. The CJEU also stressed that unlawful exploitation of the reputation of a PDO entails use of the PDO that seeks to take undue advantage of its reputation (Article 118m Regulation (EU) No 1234/2007; Article 103 para 2 lit a (ii) Regulation (EU) No 1308/2013) . Therefore, "Champagner Sorbet" does not take undue advantage (and therefore does not exploit the reputation) of the PDO ‘Champagne’ if the product concerned has, as one of its essential characteristics, a taste that is primarily attributable to champagne. 

Comment

The CJEU has clarified that a PDO may be used on products that only contain the PDO. However, for this to be permissible the taste of the PDO has to be an essential attribute of the product, which in turn has to be decided on the basis of the evidence. Quantity per se, while significant, is not in itself determinative. The national German court must now determine whether Aldi Süd fulfils the conditions. Depending on the evidence submitted, it would be possible for the German court to conclude that the name "Champagner Sorbet" on the inner or outer packaging of the product “constituted a false or misleading indication and was therefore unlawful”.

Posted by: Birgit Clark @ 14.27
Tags: PDO, CJEU,
Sharing on Social Media? Use the link below...
Perm-A-Link: https://www.marques.org/blogs/class46?XID=BHA4596
Reader Comments: 0
Post a Comment


MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.


The Class 46 Archive






 

 

 

 

 

 


CONTACT

info@marques.org
+44 (0)116 2747355
+44 (0)116 2747365
POST ADDRESS

Unit Q, Troon Way Business Centre
Humberstone Lane, Leicester
LE4 9HA

EMAIL

Ingrid de Groot
Internal Relations Officer
ingrid.de.groot@marques.org
Alessandra Romeo
External Relations Officer
aromeo@marques.org
James Nurton
Newsletter Editor
editor@marques.org
Robert Harrison
Webmaster
robertharrison@marques.org
BLOGS

Signup for our blogs.
Headlines delivered to your inbox