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Is that champagne in your sorbet or are you just exploiting a PDO?

The CJEU has clarified the conditions when a Protected Designation of Origin (PDO) can be used on products. In the case Comité Interprofessionnel du Vin de Champagne v Aldi Süd Dienstleistungs-GmbH & Co OHG (C-393/16), the CJEU ruled that a PDO may be used on products that only contain the PDO, however it must be an essential attribute of the product.

The CJEU has clarified the conditions when a Protected Designation of Origin (PDO) can be used on products. In the case Comité Interprofessionnel du Vin de Champagne v Aldi Süd Dienstleistungs-GmbH & Co OHG (C-393/16), the CJEU ruled that a PDO may be used on products that only contain the PDO, however it must be an essential attribute of the product.

Background

PDOs give protection to hundreds of locally made products such as Greek Feta cheese, English Stilton cheese, Italian Parma ham and French Champagne, which can only be made in the region of Champagne in eastern France. In this case the German discounter retailer Aldi Süd (Aldi) sold a sorbet product called "Champagner Sorbet" in 2012, which contained 12% champagne.

Comité Interprofessionnel du Vin de Champagne (CIVC) brought proceedings in Munich against Aldi seeking an injunction prohibiting the further sale of the product under the name. The court at first instance granted the injunction, however on appeal this decision was reversed. The CIVC brought an appeal before the German Federal Court of Justice (BGH) which sent a reference to the CJEU. The key questions are summarised below:

  • Do the rules on PDOs for wine (namely Article 118m(2)(a)(ii) of Regulation 1234/2007, as amended by Article 103(2)(a)(ii) of Regulation 1308/2013) also apply in a case like this in which a PDO is used as part of the name of a product which does not correspond to the product specifications of a PDO, but to which an ingredient has been added that does correspond to the product specifications; and if yes
  • Does the use of a name such as ‘Champagner Sorbet’ constitute undue exploitation of the reputation of the PDO ‘Champagne'.

CJEU ruling

The CJEU held that the scope of the two provisions of the above Regulations is to be understood broadly. These provisions include any direct or indirect commercial use of the PDO and protect the PDO holder against the taking of undue advantage of its reputation. The use of the name 'Champagner Sorbet' on the product could constitute a direct commercial use of the PDO.

The CJEU went on to consider whether undue advantage arises when products protected as PDOs are contained as ingredients in or with other products. It looked at section 2.1.2 of the Guidelines on the labelling of foodstuffs using protected PDOs or protected geographical indications (PGIs) as ingredients (OJ 2010 C 341, p. 3). This sets out three conditions for determining whether a name registered as a PDO may be mentioned in the trade name of a foodstuff incorporating products benefiting from that PDO:    

  • The foodstuff in question should not contain any other comparable ingredient;
  • This ingredient should also be used in sufficient quantities to confer an essential characteristic on the foodstuff concerned; and
  • The percentage of incorporation should be indicated in close proximity to the trade name.

In light of the above Guidelines the use of 'Champagne', as part of 'Champagner Sorbet' could constitute exploitation of the reputation of a PDO.

In relation to the issue of whether the exploitation gave an undue advantage, the CJEU held that while the quantity of champagne in the sorbet could be significant, it was not in itself sufficient to determine an undue advantage. It is necessary to undertake a qualitative assessment. The product may be sold under the name ‘Champagner Sorbet’ if it has one of its essential characteristics, i.e.an aroma or taste. In this case, if the product had a taste attributable primarily to champagne the product name did not take undue advantage of the PDO ‘Champagne’ and could be used.

Conclusion

In conclusion a PDO may be used on products that only contain the PDO and if it has one of the essential attributes of the PDO. The case will now return to the BGH to determine whether Aldi's product fulfils the conditions or if the use of 'Champagner Sorbet' constitutes a false or misleading indication.

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