Pop the cork! CJEU rules that sorbet can be sold under the name “champagne”

Written on 12 Jan 2018

In a recent decision, the CJEU held that a sorbet could be sold under the name “Champagner Sorbet” if it had, as one of its essential characteristics, a taste that was primarily attributable to champagne.

The case clarifies the broad scope of protection given to protected designations of origin (PDO) and the circumstances in which a company may legitimately use a name containing a PDO to sell its products.

What is a PDO?

A PDO can be registered in the EU for quality foodstuffs and agricultural products. The purpose of a PDO is to protect regional specialities in the EU and to allow consumers to have confidence that those products have specific characteristics and a certain guarantee of quality, because of their geographical provenance.  Examples of PDOs include “Champagne”, “Cornish clotted cream” and “Stilton blue cheese”.

Once registered, the PDO protects against any direct or indirect commercial use of the protected name which takes unfair advantage of its reputation. The PDO also protects against the misuse, imitation or evocation of that name and any false or misleading indications of the provenance or essential qualities of a product.

The Champagner Sorbet Case

At the end of 2012, Aldi began selling a sorbet containing 12% champagne under the name “Champagner Sorbet”. Shortly afterwards, a trade association representing champagne producers, the Comité Inteprofessionnel du Vin de Champagne (CIVC), applied to the German courts for an injunction to prevent further sales of the sorbet under that name, on the basis that it constituted unlawful use of the PDO “Champagne”.

The Regional Court of Munich initially granted the injunction, but this was later reversed on appeal. The CIVC brought a further appeal before the German Federal Court of Justice, which referred several questions of interpretation to the CJEU.

In particular, the CJEU was asked whether the EU regulations protecting PDOs would extend to a case such as this, where a PDO is used as part of the name of a foodstuff (e.g. “Champagner Sorbet”), and where the foodstuff (i.e. sorbet) does not itself correspond to the PDO specifications (in this case being wine), but instead includes an ingredient corresponding to those specifications.   The CJEU was also asked whether such use could amount to unlawful exploitation of the reputation of a PDO.

CJEU decision

The CJEU found that:

  • The relevant EU regulations apply to any commercial use of a PDO, including where it is used as only part of the name under which a product is sold and where the product contains an ingredient corresponding to the PDO specification.
  • In order for use of a PDO to amount to unlawful exploitation of its reputation, there must be a use which seeks to take undue advantage of its reputation.
  • Here, by using the name “Champagner Sorbet”, Aldi were taking advantage of the reputation of luxury and prestige which is indicated by the PDO “Champagne” and extending that to their product. However, the CJEU found that Aldi would not be taking undue advantage of the PDO champagne, if it had as one of its essential characteristics, a taste that was primarily attributable to champagne. The proceedings were referred back to the German courts to determine whether this was the case, but the CJEU indicated that the national court should undertake a qualitative assessment – whilst the quantity of champagne would be a significant factor, this was not, of itself, determinative.
  • If the sorbet did not have a taste primarily attributable to champagne as one of its essential qualities, then using the name “Champagner Sorbet” on packaging and advertising materials would constitute a false or misleading indication under the EU regulations. The CJEU clarified that PDOs are protected against false or misleading indications not only in relation to the origin of the product, but also concerning the nature or essential qualities of that product, such as its taste.
  • Using a PDO such as “Champagne” within the name of a product would not constitute misuse, imitation or evocation of the PDO where it was being used to openly claim a gustatory quality connected with it.

Comment

This case confirms that the scope of protection afforded to a PDO is broad. The EU regulations cover any direct or indirect commercial use of a PDO, which takes unfair advantage of its reputation.

The case also sets out some helpful guidance for companies that wish to sell products under a name incorporating a PDO, on the basis that the product includes an ingredient protected by a PDO. In such circumstances, the key point is that the taste or aroma of that particular ingredient must be sufficient to give the product one of its essential characteristics.  If the overall taste or aroma is more attributable to another ingredient, then using that name is likely to infringe the PDO and could lead to an injunction.

Comite Interprofessionnel du Vin de Champagne v Aldi Sud Dienstleistungs-GmbH & Co OHG