14 July 2022TrademarksMuireann Bolger

Denmark rapped over Feta dispute with EC

The decision clarified EU member states’ obligations regarding protected products exported to non-EU countries.

The European Commission (EC) has prevailed at a top EU court after Denmark was found to have contravened EU regulations over its authorised use of the word mark ‘Feta’ for cheese intended for export outside of the union.

The fifth chamber of the Court of Justice of the European Union (CJEU) delivered its decision today, July 14, alongside a reprimand to Denmark.

The name ‘Feta’ was registered as a protected designation of origin (PDO) in 2002.

Since then, that name may be used only for cheese that originates in the defined geographical area in Greece and conforms to the applicable product specification.

Infringement of Greek marks

Back in April, the EC, supported by Greece and Cyprus, asked the court to find that by allowing Danish dairy producers to produce and market imitations of feta cheese, Denmark had infringed Greek trademarks.

The court also heard that despite requests from the Greek authorities, Denmark refused to put an end to this practice, considering that it was not contrary to EU law.

According to Denmark, the regulation applied only to products sold within the territory of the Union and does not prohibit Danish companies from using the name 'Feta' to describe cheese exported to countries where that name is not protected.

Denmark did not deny that it has neither prevented nor stopped producers in its territory from using the name ‘Feta’ if their products are intended for export to third countries.

But in its judgment delivered today, the court held that according to EU regulation, the use of a registered name to designate products not covered by the registration that are produced in the EU and intended for export to third countries is not excluded from the prohibition laid down in that regulation.

Failure of obligations

The court pointed out that PDOs and protected geographical indications (PGIs) are protected as an IP right by regulation, even if that product is intended for export to countries outside the EU.

The court concluded that, by failing to prevent or stop such use in its territory, Denmark failed to fulfil its obligations under regulation number 1151/2012.

“Having regard to all of the foregoing considerations, it must, first, be held that, having failed to prevent and stop the use, by Danish dairy producers, of the PDO 'Feta' to designate cheese which does not meet the specifications of this PDO, the Kingdom of Denmark has failed to fulfil its obligations…,” said the court.

But it found that Denmark had not infringed its obligation under the “principle of sincere cooperation”, relating to its alleged failure to prevent or stop Danish producers from using the PDO ‘Feta’.

The court dismissed the commission’s second complaint, as the commission had failed to persuade it that Denmark had taken any action or made any statements that constitute unlawful conduct distinct from that covered under the first complaint.

The court ordered Denmark, in addition to its own costs, to bear four-fifths of the costs borne by the commission.

This development comes after an association of Cypriot cheese producers failed to cancel a Greek dairy maker's trademark for ‘Halloumi Vermion grill cheese’ in 2021 at the EU General Court.

The foundation owns an EU collective mark for ‘Halloumi’, meaning only its members can use it, in line with the stringent production requirements outlined in Cyprus’ protected designation of origin for the country’s signature cheese.

But the EU Intellectual Property Office found that the mark had a ‘weak distinctive character’.

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