The European Union provides for Protected Designations of Origin for foods. In Spain, a dairy company called Industrial Quesera Cuquerella SL (IQC) sells three types of cheeses manufactured in the La Mancha region. These cheeses feature a representation of the fictional Spanish knight starring in Cervantes’ famous novel Don Quixote de La Mancha, completed in 1615: the deluded knight famously tilted at windmills thinking they were giants. The cheese labels also featured an underfed horse, the obligatory windmills, sheep, and the words “Quesos Rocinante” (Rocinante cheeses).

“Rocinante” is the name of Don Quixote’s horse, and the other images on the label also reference Cervantes’ famous novel.

IQC’s cheeses are not covered by the PDO “queso manchego”. The PDO protects certain types of cheese from the La Mancha region in Spain. This cheese must be aged no less than sixty days and no more than two years, and moulded into a barrel shape. It is also made from sheep’s milk. These aspects of production meet the requirements of the PDO.

The Manchego Cheese Denomination of Origin Regulating Council, which is responsible for the PDO, brought an action against IQC for infringement of the PDO. Cheeses from La Mancha that meet the PDO requirements carry a casein tab that is applied when the cheese is in the mould, and bear a distinctive label that is issued by the Council. This label carries the legend queso manchego, a serial number, and artwork depicting Don Quixote de La Mancha.

The Court of Justice of the EU (“CJEU”) held that a registered name is capable of being evoked through the use of figurative signs – in this case, imagery associated with the novel Don Quixote. The CJEU noted that it is important that consumers have “clear, succinct and credible information regarding the origin of a product”.

The CJEU found that IQC infringed the PDO – the registered name of the PDO therefore cannot be permitted to be evoked by the use of figurative signs. This is a remarkable extension of rights granted under the PDO, particularly when this extension results in the capture of various concepts from a literary work long in the public domain. The CJEU also held that even if the manufacturer’s product was made in the designated area, if it did not comply with the requirements of the PDO, it was still an infringement of the PDO.

What does this mean for Australian food manufacturers? Prior to this decision, using imagery from a centuries-old fictional work would have been a straightforward decision – copyright in the novel has long passed. But if exporting foods to the EU, be conscious of these new sorts of ancillary “evocation” shadows which can be cast by PDOs.