Advocate General CAMPOS SÁNCHEZ-BORDONA recently rendered his opinion in the case ‘Champagne sorbet’ (case C-393/16)

As expected, the AG confirmed that it is for the national courts to assess, on a case by case basis, if the use of a protected term (in this case, ‘Champagne’) in the name of a food product (in this case, a Champagne sorbet) was not unduly exploiting the reputation of the protected term, taking into account:

  • the quantity of the ingredient covered by the protected term in the final product, and whether such quantity was sufficient to confer an essential characteristic on the final product.In this case, is 12% of Champagne enough to confer on the sorbet an essential characteristic?
  • all the other elements on the packaging or advertising material of the product, and whether the overall presentation of the final product is not misleading the consumer as to the origin, nature or quality of the product, and/or unduly exploiting the reputation of the protected term.In this case, could the broad use of graphic elements relating to Champagne on the packaging of the sorbet amount to an undue exploitation of the reputation of the luxury sparkling wine?

Facts of the case

The ‘Comité Interprofessionnel du Vin de Champagne’ (CIVC), defender of the Champagne producers and the protected term ‘Champagne’, sued ALDI SÜD for marketing a frozen sorbet under the name ‘Champagner Sorbet’.

The sorbet in question actually contained Champagne as an ingredient (quantity: 12 %).

First, the Regional Court of Munich ruled in favour of the CIVC, considering that by using the name ‘Champagner Sorbet’ and by putting the image of a champagne bottle on the packaging of the product, ALDI SÜD had exploited the high reputation of Champagne.

The Court of Appeal overruled that decision, by finding that the name ‘Champagner Sorbet’ did not exploit the reputation of the protected name ‘Champagne’. The Court of Appeal considered, inter alia, that the name ‘Champagner sorbet’ was the correct (commonly used) name for that food product, and that the percentage of Champagne (12%) could be considered sufficient to give an ‘essential’ characteristic on the sorbet.

The CIVC brought the case before the Federal Court of Justice of Germany (hereafter, the Bundesgerichtshof). The Bundesgerichtshof decided to stay the proceedings and refer questions to the CJEU for a preliminary ruling.

The AG CAMPOS SÁNCHEZ-BORDONA recently rendered his opinion on the questions referred to the CJUE, as analysed below.

The main question

Out of the four questions of the Bundesgerichtshof, the most relevant and important one concerns 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.

In particular, the Bundesgerichtshof asked whether it would be allowed to use a protected term (such as Champagne) on the packaging a food product (‘Champagner sorbet’), considering that:

  • the name of the food product (‘Champagner sorbet’) is the name commonly used by the public concerned (generic name); and
  • the protected ingredient (Champagne) is added in sufficient quantity to confer an essential characteristic on the final product (the sorbet).

Opinion of the AG

The AG first pointed out that the use of a protected term on the packaging of a food product is never an innocent choice but logically tends to exploit the reputation associated with the protected ingredient. As a general rule, such commercial practice should therefore be considered illicit (55).

However, such practice may be allowed when the food operator has a legitimate interest to use the protected term.

Such legitimate interest could be based on (52 -61):

  • the existence of a prior right, as it may be the case under intellectual property law (but not relevant in the case at hand);
  • the existence of a legal imperative (which may be the case here, especially taking into account the applicable labelling legislation );
  • the fact that using the protected name is inoffensive (which may be the case here).

The AG then considered multiple elements in order to assess whether the food operator could justify a legitimate interest based on a legal imperative or inoffensive use (61).

a) Obligation to indicate the product name on the packaging: use of the common name

One of the arguments raised during the judicial proceedings was that the food operator is legally obliged to correctly name its products, in accordance with the applicable labelling legislation.

In this case, it was argued that the name ‘Champagner sorbet’ is the common name used by German consumers for this product.

The AG however dismisses such argument, stressing out that the purpose of a protected term (such as the AOP ‘Champagne’) is precisely to prevent a term from becoming generic.

The AG therefore concludes that the fact that the term ‘Champagner Sorbet’ is usually used to designate a sorbet in one or more Member States, is not sufficient to confer a legitimate interest on the distributor to include the protected term in its product name (67).

b) Essential characteristic conferred on the product

The question then arose whether it would not be legitimate for a food operator to use a protected term in the name of a product when the ingredient concerned (in this case, Champagne) is indeed used in sufficient quantity in the final product.

The AG refers in this respect to the (non-binding) 2010 EU Commission Guidelines on the labelling of foodstuffs using protected designations of origin (PDOs) or protected geographical indications (PGIs) as ingredients (which were initially established for products other than wines and spirits but may be applied by analogy).

According to these guidelines, a protected term may be mentioned in, or close to, the trade name of a foodstuff containing the ingredient concerned, provided that the following conditions are met:

1) The foodstuff in question should not contain any other ‘comparable ingredient’, i.e. any other ingredient which may partially or totally replace the protected ingredient (e.g. the Champagne sorbet should not contain another sparkling wine);

2) The ingredient should also be used in sufficient quantities to confer an essential characteristic on the foodstuff concerned (to be appreciated on a case-by-case basis);

3) the percentage of incorporation of the protected ingredient should ideally be indicated in or in close proximity to the trade name of the relevant foodstuff or, failing that, in the list of ingredients, in direct relation to the ingredient in question (e.g. ‘Champagne sorbet (12%)’ or List of ingredients: Champagne (12%))’).

In the case at hand, the first and third conditions were not considered an issue.

Regarding the second condition, the AG confirmed that it will be for the national courts to appreciate, on a case-by-case basis, whether 12% of Champagne is sufficient to indeed confer to the sorbet an ‘essential characteristic’.

The national judges will therefore have to analyse whether the quantity of Champagne is enough to ‘characterize’ the sorbet, taking into account the finesse of Champagne, its taste, the aroma it may confers, how such aroma is perceived in the final product, etc.

c) Other elements participating to the exploitation of the reputation of Champagne

At last but not at least, the AG recalls that the product presentation must also comply with the general rules on fair commercial practices.

(Former) article 118 quaterdecies (c) and (d) of Regulation 1234/2007 provides in particular that registered terms, such as ‘Champagne’, are protected against:

  • any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product;
  • any other practice liable to mislead the consumer as to the true origin of the product.

Therefore, even if it would be decided by the national courts that 12% of Champagne is indeed enough to confer an essential characteristic on the sorbet, it would yet be necessary to assess whether the overall presentation of the product (the packaging, the advertising material or documents, etc.) is not misleading as to the origin, nature or quality of the product, and/or does not unduly exploits the reputation of Champagne, by stressing too much the presence of the luxury drink in the product.

In the case at hand, the front packaging is covered with multiple graphic elements relating to Champagne (i.e. a half-full Champagne flute glass, a cork stopper in the foreground, and a Champagne bottle in the back).

In the AG’s opinion, the overall impression given by the packaging is not to be neglected, and the national courts will have to assess whether the use of these graphic elements on the label of the ‘Champagner Sorbet’ does not reflect the desire to establish a disproportionate connection with the protected sparkling wine.

We may reasonably expect that the CJEU will follow the AG’s opinion, as it is often the case.

This will of course have an impact on the way food operators may advertise products containing as an ingredient a food with a protected name, from ‘Pizza with Parma Ham (PDO) ’ to ‘Chocolate filled with Cognac (AOP)’.