A bitter defeat for the French association of champagne producers: yesterday the ECJ decided that the German discounter Aldi Süd is allowed to sell frozen ice cream under the name “Champagne Sorbet”. Decisive is the taste of champagne.
The European Court of Justice (ECJ) thus concluded a further stage in the long-standing dispute over the Protected Designation of Origin “Champagne” (C-393/16). For the Comité Interprofessionnel du Vin de Champagne, an association of French champagne producers, sees Aldi’s “Champagne Sorbet” as an unlawful appropriation and allusion and also assumes a likelihood of confusion. In particular, the plaintiffs argued that the sorbet did not comply with the product specification but contained an ingredient corresponding to that product specification.
Geographical indications in spirit drinks are strictly protected
Since 2012 the sorbet in question has been offered for sale at Aldi Süd. According to product data, it contains, among other ingredients, 12% champagne. In fact, this does not correspond to the product specification of the protected designation of origin “Champagne”. The ECJ stressed that the protection of a protected designation of origin also applies to products used as ingredients. In previous judgements (EU: C: 2011:484) it was also stated that a geographical indication for spirit drinks which do not comply with the respective specifications is in principle a direct commercial use of this geographical indication. In addition, the use of a registered geographical indication in a composite term is prohibited, unless the alcohol in question comes exclusively from the spirit which is referred to.
Criteria for the label “Protected Designation of Origin”
Not only the origin of these products refers to a certain region. The special qualities and characteristics are also achieved through traditional and regional processing. All production steps are therefore carried out in the original geographical area. In Germany, this quality label reaches the “Hay-milk” label, in the EU this label is reached by many classics such as Champagne and Huile d’ olive de Haute-Provence from France, Arroz del Delta del Ebro from Spain, Tiroler Bergkäse from Austria and Prosciutto di Parma from Italy.
Essential property in sorbet by the ingredient champagne?
Therefore, the key question in this case was: does Aldi South’s champagne sorbet ice cream contain enough of the eponymous ingredient to give the food an “essential property”? The ECJ stated that, in view of the heterogeneity of the cases that may arise, it was not possible to establish a uniform minimum proportion. The quantity of the ingredient present in the food is an important but insufficient criterion. The assessment is individual and differs depending on the products. In the end, aroma and taste are decisive. And the champagne taste convinced with the “Champagne Sorbet” from Aldi Süd.
Illegal appropriation has to be examined by national courts
In addition, the ECJ pointed out that it is for national courts to examine whether a designation constitutes an unlawful appropriation and whether it benefits unjustifiably from the reputation of the protected designation of origin. The ECJ even rated the term “champagne sorbet” positively, because it is a very direct use of the term “champagne”. Since it is openly claimed to have a taste characteristic related to the name, there is neither an appropriation nor an allusion. However, this assessment opens up a field for all those who, through the use of a proprietary ingredient and the partial incorporation of this ingredient into the product name, would like to adopt the associated quality of a protected geographical term.
The ECJ’s view will therefore undoubtedly come up again in the further course of the case. For the parties to this dispute over the registered Protected Designation of Origin Champagne, the proceedings before the European Court of Justice are merely an intermediate dispute in the pending lawsuit. And this will be negotiated before the Federal Court of Justice (BGH) in Germany.
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