CJEU, Comité Interprofessionnel du Vin de Champagne v. Aldi Süd Dienstleistung-GmbH & Co. OHG, 20 December 2017
According to this decision delivered by the CJEU, a protected designation of origin (PDO) could be used as part of the name of a foodstuff which does not correspond to the product specifications for that PDO but contains an ingredient which does correspond to those specifications.
Pursuant to article 118m of Regulation No 1234/2007, in force at the material time, and article 103 of regulation No 1308/2013, which replaced it with effect from 1 January 2014, PDO – which may be used by any operator marketing a wine produced in conformity with the corresponding product specification – shall be protected against:
– Any direct or indirect commercial use of a protected name by comparable products which do not comply with the corresponding product specification or in so far as such use exploits the reputation of a designation of origin or a geographical indication;
– Any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation”, “flavour”, “like” or similar;
– Any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the wine product concerned, and the packing of the product in a container liable to convey a false impression as to its origin.
At the end of 2012, Aldi, a German company which manages discount supermarkets, began to sell a frozen product manufactured by a third party and named “Champagner Sorbet”. This product contained, among its ingredients, 12% champagne.
CIVC, an association of champagne producers, considered that such use constituted an infringement of the protected designation of origin (PDO) “Champagne”, on the basis of the abovementioned provisions, and brought proceedings in Germany in order to obtain an injunction prohibiting Aldi from using that name in such manner, i.e. for a product which does not correspond to the product specifications for that PDO but only contains an ingredient which does correspond to those specifications.
The Bundesgerichtshof (Federal Court of Justice), before which the dispute was brought, decided to stay the proceedings before it and referred four questions to the Court of Justice, which answered in its decision dated 20 December 2017.
1st question
The first question referred to the Court of Justice was whether or not the scope of the abovementioned provisions covers a situation where a PDO, such as ‘Champagne’, is used as part of the name under which a foodstuff is sold, such as ‘Champagner Sorbet’, and where that foodstuff does not correspond to the product specifications for that PDO but contains an ingredient which does correspond to those specifications.
To this first question, the Court of Justice answered that the scope of those provisions covers a situation where a PDO, such as ‘Champagne’, is used as part of the name under which a foodstuff is sold, such as ‘Champagner Sorbet’, and where that foodstuff does not correspond to the product specifications for that PDO but contains an ingredient which does correspond to those specifications.
2nd question
The second question referred to the Court of Justice was whether or not such use constitutes exploitation of the reputation of a PDO, within the meaning of the abovementioned provisions, where the name of the foodstuff corresponds to the name by which the relevant public usually refers to that foodstuff and the ingredient has been added in sufficient quantity to give the foodstuff one of its essential characteristics.
The Court found that “the use of a PDO as part of the name under which is sold a foodstuff that does not correspond to the product specifications for that PDO but contains an ingredient which does correspond to those specifications cannot be regarded, in itself, as an unfair use, and, therefore, as a use against which PDOs are protected in all circumstances (…)”. Such use would only be prohibited if it is “intended to take unfair advantage of the reputation of a PDO”, which would be the case, according to the Court, if the product does not have, as one of its essential characteristics, a taste attributable primarily to the presence of that ingredient in the composition of the foodstuff.
3rd question
By its third question, the referring court seeks to ascertain whether or not such use constitutes misuse, imitation or evocation within the meaning of those provisions.
The Court answered that the use of a PDO in the name of a foodstuff such as that at issue in the main proceedings does not appear such as to constitute misuse, imitation or evocation, in so far as this use is made to claim openly a gustatory quality connected with it. Therefore, according to the Court, “the use of a PDO as part of the name under which is sold a foodstuff that does not correspond to the product specifications for that PDO but contains an ingredient that does correspond to those specifications, such as ‘Champagner Sorbet’, does not constitute misuse, imitation or evocation within the meaning of those provisions”.
4th question
Finally, the last question referred to the Court of Justice was to know if the abovementioned provisions only prohibit false or misleading indications which are liable to convey a false impression as to the geographical origin of the product concerned, or also false or misleading indications relating to the nature or essential qualities of the product.
The Court confirmed that such provisions provide a protection to PDOs against both:
– False or misleading indications as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the wine product concerned, and
– The use of packing for the product in a container liable to convey a false impression as to its origin.
Therefore, the Court held that “if the foodstuff at issue in the main proceedings did not have, as an essential characteristic, a taste attributable primarily to the presence of champagne in its composition, it would therefore be possible to conclude that the name ‘Champagner Sorbet’ on the inner or outer packaging of that foodstuff constituted a false or misleading indication”.
The answer of the Court to this last question is thus that the abovementioned regulations could be applied to prevent the use of false or misleading indications which are liable to create a false impression as to the geographical origin of the product concerned and to false or misleading indications relating to the nature or essential qualities of the product.
Antoine JACQUEMART
