Alberto Severi, in his own name and representing Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA v Regione Emilia-Romagna (AG Sharpston for the ECJ; C-446/07; 07.05.09)
The region of Emilia-Romagna in Italy imposed a penalty on Cavazzuti SpA, now Grandi Salumifici Italiani SpA (“GSI”), for using the name SALAME TIPO FELINO (in English, ‘Felino-type Salami’) on the label of its salami sausage in a way that was misleading to customers, thus infringing Article 2 of Directive 2000/13 relating to labelling, presentation and advertising of foodstuffs (as transposed into national law in Italy). GSI produced the salami in Modena, also situated in the Emilia-Romagna region but some 50km from Felino, and had done so since approximately 1970.
GSI applied to the Tribunale Civile di Modena for the penalty to be overturned on the grounds that the name SALAME FELINO was generic and had been used for a number of years in good faith outside Felino, including in respect of a collective trade mark registered by a group of local producers. The Tribunale Civile stayed proceedings and asked the ECJ for guidance on, inter alia: (i) whether a geographical name for which the submission of an application for registration as a protected designation of origin (“PDO”) or a protected geographical indication (“PGI”) has been rejected or blocked, must be considered generic at least throughout the period during which such rejection or blocking remains effective; and (ii) whether the name of a foodstuff which was evocative of a place, but which was not registered as a PDO or PGI, may be legitimately used by producers who had used it in good faith and uninterruptedly for a considerable period since before the entry into force of Regulation 2081/92 on the protection of PDOs and PGIs. An application had been made for recognition of SALAME FELINO as a PGI, but at the time of the reference the name had not been registered.
In answering (i), the AG concluded that a name cannot be assumed to be generic within the meaning of Regulation No 2081/92 until an application for protection of the name as a PDO or PGI had been rejected by the Commission on the ground that the name had become generic. In assessing whether GSI had misled purchasers within the meaning of Article 2 of Directive 2000/13, in the absence of an assessment by the Commission under Regulation No 2081/92, the AG concluded that the referring court may take into account characteristics of the name that would be considered by the Commission in assessing whether the name was generic and may have regard to the Court’s case-law on this point.
In answering (ii), the AG concluded that the name of a food product which was evocative of a place, but not registered as a PDO or PGI, may legitimately be used provided that the name was not used in a way which was likely to mislead the average reasonably well informed, observant and circumspect consumer contrary to Article 2 of Directive 2000/13.
In deciding that question, the national court should have regard to whether the consumer could be misled as to the provenance or another characteristic of the product. The court should evaluate whether the name, as it appeared on the labelling, was specific to a region or had become the general name used to designate a product with particular characteristics. Submissions similar to those made to the Commission in an application for, or opposition to, protection under the Regulation could be taken into account. The AG also considered that regard could be had to the length of time during which the name had been used as it was an objective factor which might affect the expectations of the reasonable consumer but that the (subjective) good faith (or otherwise) of the producer was irrelevant. The AG commented that under Article 2 of Directive 2000/13, a label which used a name suggesting or indicating provenance could perhaps be said to be prima facie misleading if the product was entirely produced elsewhere and had no link to the geographical territory indicated at any point during the process of manufacture. The AG concluded that regard should be had to the presentation of the packaging, in particular the positioning and size of a geographical name and the description of the place of manufacture, as even if the geographical name was intended to advertise characteristics of a foodstuff, the labelling must ‘tell the whole truth’.