The Court of Justice of the European Union (CJEU) held on December 20, 2017 that a sorbet containing champagne can be sold if its taste is primarily attributable to the presence of Champagne in its composition.
German supermarket chain Aldi started selling in its stores in 2012 a “Champagner Sorbet” which packaging stated that it contained 12% Champagne.
The Comité Interprofessionnel du Vin de Champagne (CIVI), a French association of champagne producers, asked the Regional Court of Munich to enjoin the use of the protected designation of origin (PDO) ‘Champagne’ in the name of the sorbet, on the basis of Article 118m(2)(a)(ii) of Council Regulation No 1234/2007, in force when the suit was filed, and Article 103(2)(a)(ii) of Regulation No 1308/2013, which replaced it (Single CMO Regulation articles).
The Single CMO Regulation articles provide that wines protected by PDOs are protected against direct or indirect commercial use of their names if it “exploits the reputation of a designation of origin or a geographical indication.” These wines are also protected against “misuse, imitation or evocation” and against “any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product.”
The Regional Court of Munich granted CIVI’s application, but the Higher Regional Court of Munich reversed. CIVI appealed to the Bundesgerichtshof, which stayed its proceeding and asked the CJEU if the Single CMO Regulation articles must be interpreted as meaning that the use of a PDO as part of the name of a food product, which does not correspond to the product specifications, but to which the protected product has been added as an ingredient giving the product one of its essential characteristics, is an unlawful exploitation of the reputation of origin.
The ECJ first found that the scope of the Single CMO Regulation articles covers instances where a PDO is used as part of a name of a food product.
The ECJ then examined whether such use exploits the reputation of a PDO, if the product does not correspond to the product specifications of the PDO, but contains an ingredient which does.
The Court followed the Opinion of Advocate General Campos Sánchez-Bordona, which had argued that it is not the quantity of the protected ingredient which is used by the food product which matters, but, rather, the determination that this ingredient conveys a taste to the product which must be the essential characteristic of that food product.
The ECJ concluded that using a PDO as part of the name of the product, which does not correspond to the product specifications for the PDO, but which contains an ingredient corresponding to these specifications, is an improper exploitation of the PDO if the essential characteristic of this food product is not the taste provided primarily by this ingredient.
The use of the PDO was not unfair either in this case, as it was used “to claim openly a gustatory quality connected with [the PDO].”
Finally, the ECJ held that using the name of the PDO on the product packaging is not a false or misleading indication of origin if the ingredient confers upon the food product its essential characteristic.