The use of the name “Champagner Sorbet” by the German supermarket chain Aldi for a sorbet dessert containing actual Champagne (12% by volume) was challenged by the Comite Interprofessionel du Vin de Champagne (trade association for Champagne houses) as unapproved (infringing) use of the Protected Designation of Origin (PDO), “Champagne”. The Opinion of the Advocate General (AG) of the CJEU released on 20 July 2017 (as yet not in English) in case C-393/16, was that it would be for the referring court to assess whether there was a legitimate interest justifying the use in any particular commercial presentation of a PDO, but the factors to be considered were whether the added PDO protected ingredient conferred on the product an “essential characteristic” which together with the elements of the packaging and labeling induced the consumer to link this product with the Champagne PDO. The test would be whether the average European consumer who is reasonably well informed and reasonably observant and circumspect would be led to believe that the product enjoyed the same quality and prestige inherent in the PDO. The case continues and we await judgment from the CJEU.
Joel Smith, IP partner, commented that: “We see the potential power of protected designations of origin or geographical indications in the EU. The UK has yet to grapple with what protection will continue in the UK or how PDOs/GIs will be recognised in the UK, post-Brexit.”