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).
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.
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.
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”.
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