At the end of last year, the CJEU gave its preliminary ruling on four questions which had been asked by the German Federal Court in respect of a dispute between Aldi and the CIVC (an association of champagne producers).
The questions posed to the CJEU revolved around the scope of protection afforded to protected designations of origin (‘PDOs’).
The context to the questions arose as a result of Aldi selling a frozen food product in 2012. This product was distributed under the name ‘Champagner Sorbet’. It contained, amongst other things, 12% champagne.
The CIVC took the view that the distribution of this product by Aldi was an infringement of the PDO ‘Champagne’ and brought proceedings in Germany in order to obtain an injunction to prohibit Aldi from using the name ‘Champagner Sorbet’ on the product.
The first instance Court granted the injunction, but this was overturned on appeal. The CIVC lodged an appeal before the Federal Court on the points of law which the Court subsequently referred to the CJEU.
The points of appeal and points referred to the CJEU are:
- Whether certain provisions covering PDOs (specifically, Art. 118m(2)(a)(ii) of Regulation No 1234/2007 and Art. 103(2)(a)(ii) of Regulation 1308/2013 are interpreted as covering a case in which a PDO is used as part of the name of a foodstuff which doesn’t correspond to the product specifications (of the PDO), but to which an ingredient has been added which does correspond to the product specifications;
- Whether those same provisions are interpreted as meaning that the use of a PDO as part of the name of a foodstuff which doesn’t itself correspond to the product specifications of the PDO, but to which an ingredient has been added which does correspond to the product specifications, constitutes exploitation of the reputation of the PDO where the name of the foodstuff is the same as the name usually used by the public to refer to that foodstuff and the ingredient has been added in a quantity which is sufficient to give the product one of its essential characteristics (i.e. whether use of the word ‘champagne’ in ‘Champagner Sorbet’ is exploitation of the reputation of the PDO ‘CHAMPAGNE’, where ‘champagne’ is used by the public to refer to the sorbet and where the sorbet has one of the essential characteristics of champagne);
- Whether the use of a PDO in the circumstances set out at question 2 constitutes unlawful misuse, imitation or evocation; and
- Whether provisions relating to false or misleading indications are applicable only to situations where the relevant public are liable to convey a false impression as to the product’s geographical origin.
In answering the Federal Court’s questions, the CJEU replied as following:
- Use of the PDO in this way is commercial use of the PDO and therefore it does fall under the scope of these provisions;
- Use of the PDO in this way is permitted provided that the foodstuff has an essential characteristic of the ingredient – this will often be the aroma or taste imparted by the ingredient. Whilst the quantity of the ingredient used in the overall product is a significant factor, it is not a sufficient factor as it will ultimately turn on a qualitative assessment (i.e. what does it taste/smell like?). If the taste/smell is more attributable to other ingredients used in the overall product, use of the PDO in the name of the overall product will take unfair advantage of the reputation of the PDO;
- Use of a PDO in the overall product where the overall product has an essential characteristic of the ingredient protected by the PDO will not be misuse, imitation or evocation of the PDO; and
- Again, use of a PDO in the overall product where the overall product has an essential characteristic of the ingredient protected by the PDO will not constitute a false or misleading indication as to the overall product’s geographical origin.
The most important point of this preliminary ruling came from question 2 (which informs the answers to 3 and 4) which a clear indicator of the use of PDOs in the name of products and what the Court will consider.
Therefore, whilst it was held to be up to the discretion of the national courts in each instance, where the product includes an ingredient which complies with the PDO (i.e. Champagne), the product itself (in this case the Champagner sorbet) does not constitute exploitation or taking unfair advantage of the reputation of the PDO, or constitute a misuse, imitation or evocation of the PDO, or give a false or misleading indication as to the overall product’s geographical origin, provided it has an essential characteristic of the ingredient, typically the aroma or taste. This assessment is carried out on a qualitative basis – the amount of the ingredient in the overall product will not be decisive.
Whilst no two cases are the same, this ruling gives us a useful referencing point in relation to the scope of PDOs and reminds associations interested in particular PDOs not to over-step the boundaries set where the end product retains an essential characteristic of the ingredient which is subject to a PDO.