Loyens & Loeff
Date
28-12-2017

Sparkling judgment in ‘Champagne sorbet’ case, right before Christmas!

Summary

In a judgment of 20 December 2017, the CJEU ruled that a sorbet containing champagne cannot be marketed under the name ‘Champagne Sorbet’ unless the champagne used as an ingredient in that product actually confers one of its essential characteristic on the product, i.e. its aroma or taste in particular.

Facts

At the end of 2012, Aldi began to sell a frozen product under the name ‘Champagne Sorbet’ (in German: Champagner Sorbet), which included 12% champagne among its ingredients.

Considering that the distribution of this ‘Champagne Sorbet’ constituted an infringement of the Protected Designation of Origin (PDO) ‘Champagne’, the Comité Interprofessionnel du Vin de Champagne (CVIC) brought proceedings against Aldi before the German courts.

As its main argument, the CVIC considered that the use of the PDO ‘Champagne’ in the name of the product constituted an unfair exploitation of the reputation of the luxury sparkling wine.

After various procedural developments, the Bundesgerichtshof (German Federal Court of Justice) decided to stay the proceedings before it and refer different questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

These questions all concerned the interpretation to be given to Article 103(2) of Regulation No 1308/2013[1], on the scope of protection of PDO and PGI for wine.

Highlights of the judgment

For the food sector, one of the most important questions to be answered concerned the conditions under which a PDO/PGI for wine (such as ‘Champagne’) could be used in the name of a product that does not correspond to that PDO/PGI, but contains the protected wine as an ingredient (such as a sorbet containing 12% champagne).

The judgment of the CJEU includes the following considerations:

  • First, the CJEU confirms that the provisions organising the protection of PDO/PGI for wine products were applicable to the case at hand (in other words, Article 103(2) of Regulation No 1308/2013 applies to a situation where a PDO, such as ‘Champagne’, is used as part of the name under which a foodstuff is sold, such as ‘Champagner Sorbet’, when that foodstuff contains an ingredient corresponding to the specifications of the PDO concerned;

  • Second, the CJEU considers that, in the case at hand, the use of the name ‘Champagne Sorbet’ is likely to extend to that product the reputation of the PDO ‘Champagne’, which conveys an image of luxury and prestige, and therefore to take advantage of that reputation. “It is therefore necessary”, according to the CJEU, “to examine whether such use constitutes a means of taking unfair advantage of the reputation of that PDO.”

  • Third, regarding the elements that are relevant to making such an assessment, the CJEU points out that PDO/PGI benefit from a specific protection preventing them from becoming ‘generic names’. The fact that the name of a foodstuff, such as ‘Champagner Sorbet’, is the name commonly used by the relevant public to refer to that foodstuff can thus not be considered as a relevant element to determine whether the use of that PDO is unfair or not. The CJEU indeed considers that such practice would be tantamount to accepting that that PDO may be used generically, which would be at odds with the protection conferred by EU law.

  • Fourth, the CJEU provides details on which elements must be considered as relevant to producing the aforementioned assessment, by referring to the Commission Guidelines on the labelling of foodstuffs using PDOs/PGIs.[2]

According to these Guidelines, a name registered as a PDO or PGI may be mentioned in the trade name of a foodstuff incorporating that PDP/PGI, provided that the following three conditions are met:

  1. The foodstuff in question should not contain any other “comparable ingredient”, i.e. any other ingredient which may partially or totally replace the ingredient benefiting from a PDO or PGI.

  2. This ingredient should also be used in sufficient quantities to confer an essential characteristic on the foodstuff concerned. However, given the wide range of possible scenarios, the Commission is not able to suggest a minimum percentage to be uniformly applied.

    As an example, the Commission refers to the incorporation of a small amount of a spice benefiting from a PDO/PGI which could, as such, be sufficient to confer an essential characteristic on the foodstuff. By contrast, the incorporation of a small amount of meat benefiting from a PDO/PGI in a foodstuff would not a priori be sufficient to confer an essential characteristic on a foodstuff.

  3. Finally, the percentage of incorporation of an ingredient with a PDO or PGI should ideally be indicated in or in close proximity to the trade name of the relevant foodstuff or, failing that, in the list of ingredients, in direct relation to the ingredient in question.

In light of the above provisions and Guidelines, the CJEU concludes that the use of the trade name ‘Champagne Sorbet’ would only be lawful if the ingredient covered by the PDO (i.e. Champagne) were added in sufficient quantity to confer to the sorbet one of its essential characteristics. “That characteristic”, specifies the CJEU, “will often be the aroma or taste imparted by that ingredient”. By contrast, if the taste of the foodstuff is more attributable to other ingredients it contains, the use of the PDO will take unfair advantage of the reputation of the PDO concerned.

At the end of the day, it will thus be for the national court to ascertain, in the light of the evidence before it, whether the taste of the sorbet is attributable primarily to the presence of champagne in the composition of the product… or not.

Comment

This judgment was handed down a few days before Christmas, at a time when consumers tend to put luxury food items on their tables, and when food business operators also tend to add a ‘luxury touch’ to their own products.

The ruling of the CJEU is likely to be greeted with relief by food businesses marketing products containing a PGI/PDO as an ingredient. Even if some conditions have to be met (i.e. mainly that the PDO/PGI concerned must confer one of its essential characteristics, such as its taste, on the product), there is at least no prohibition ‘as such’ to make use of a protected name in the name or on the packaging of the compound product.

That said, it is regrettable that the questions referred to the CJEU did not give the opportunity for the judges to further assess the situation in the light of Article 17 of the FIC Regulation, which legally requires the correct name of a pre-packaged food product to be specified on its packaging. In particular, the name of the food cannot be selected in a discretionary manner, but must comply with the following hierarchy: it must be (i) the legal name of the food, or, in absence of such a name; (ii) the customary name, or if there is no customary name; (iii) the descriptive name. In other words, the obligation to specify the correct name of the food (Article 17(1) of the FIC Regulation) could ultimately conflict with the obligation not to unduly exploit the reputation of a PDO/PGI and not to mislead consumers as to the origin, nature or qualities of a product (Article 103(2) of Regulation 1308/2013).

For more information, do not hesitate to contact the author or any other member of Loyens & Loeff Food & Beverages Team.

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[1]     Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007.

[2]     Guidelines on the labelling of foodstuffs using protected designations of origin (PDOs) or protected geographical indications (PGIs) as ingredients (OJ 2010 C 341, p. 3)

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