13 September 2021TrademarksBen Wodecki

PDOs protect services as well as products: CJEU

The Court of Justice of the European Union (CJEU) has ruled that protected designation of origins (PDOs) extend to services as well as products themselves.

The Comité Interprofessionel du Vin de Champagne—the trade association that represents the interests of Champagne producers—took action against an individual who owned tapas bars using the ‘champanillio’ name.

Taking issue with the usage, the Comité sought to stop it, contending that the term infringes the protected designation of origin “Champagne.”

A Spanish court disagreed, finding that the EU’s PDO designation only protected products themselves and not services associated with it.

In its September 9 judgment, the CJEU ruled otherwise, stating that the Spanish court must consider PDO regulations to apply not only to foodstuff but also services, like restaurants.

Passing decision in Comité Interprofessionnel du Vin de Champagne v GB, the judges found that regulation “protects PDOs vis-à-vis conduct in respect of both products and services.”

The court’s ruling essentially establishes wide-ranging protection extending to all uses that take advantage of the reputation enjoyed PDO-covered products.

The CJEU justices also considered whether ‘champanillo’ evokes champagne, as the term means ‘little champagne’ in Spanish.

They found that ‘evocation’ can result from a conceptual proximity.

“The court considers that, as regards the concept of ‘evocation’, the decisive criterion is whether, when the consumer is confronted with a disputed name, the image triggered directly in his or her mind is that of the product covered by the PDO,” the court ruled.

A ‘little’ toast to victory

The Oficina Española de Patentes y Marcas (Spanish Office of Patents and Trade Marks [SPTO]) had previously refused registration of ‘champanillo' as a trademark for catering services in class 43.

SPTO’s refusal was on the basis of evocation in relation to the PDO of Champagne.

The Comité had sought the protection of the term, to prevent several tapas bars in Catalonia from using the term in names and logos.

The Comité then took legal action against several of the restaurants at Audiencia Provincial de Barcelona (Provincial Court of Barcelona), citing the evocation of the PDO and the unfair advantage taken from the designation’s reputation.

The court dismissed the action in July 2018, only for Comité Champagne to then appeal.

The case was referred to the CJEU in October 2019, with the Court of Appeal of Barcelona asking it to interpret Article 103 of EU Regulation 1308/2013 in relation to the dispute.

Specifically, it asked the CJEU to determine whether the scope of a PDO allows for its protection to similar products, as well as services that might be linked to the distribution of those products.

In April, Advocate General Giovanni Pitruzzella opined that PDO products are protected against all forms of ‘commercial parasitism.’

Pitruzzella’s 77-point opinion stated that EU law protects PDO products against all parasitic commercial practices, whether they relate to goods or services, and that Regulation 1308/2013 prohibits not only misuse of a PDO but also “any practice, relating to goods or services, which is aimed at taking undue advantage of the reputation of a PDO through mental association with it.”

WIPR has contacted Comité Champagne for comment on the ruling.

Bubbly battles

The Comité is fiercely protective of its designation, litigating vigorously against those it deems to be using the term without authorisation. It proudly proclaims that the drink cannot be made anywhere outside the Champagne region in France.

Last September, it celebrated victory in Singapore after the country’s IP office ruled against the registration of a competitor’s trademark.

That same month, Champagne maker Les Roches Blanches earned a similar victory in the UK, after the UK Intellectual Property Office refused to register a competitor’s mark.

The makers of the bubbly face a fiercer battle in Russia, after President Vladimir Putin signed legislation in July that all non-Russian producers must mark their drinks in Russia as “sparkling wine” on the back of every bottle.

The likes of Moët Hennessy, Dom Pérignon, and Krug all threatened to suspend exports to Russia, with Leonid Rafailov, the director-general of AST, one of Russia’s foremost wine distributors, telling Agence France-Presse, “I can confirm I have received notification of this, and it’s justified.”

Despite the threats, however, exports by those brands continued.

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