The EU Court of Justice, in a ruling 4.12.19, denied the protection requested by the Consortium for the Protection of Balsamic Vinegar of Modena PGI. Legitimizing imitations of ‘balsamic vinegar‘ made by the German company Balema GmbH, which so designates its products made in Baden, Germany, and countless others.
PGI, Protected Geographical Indication. meaning and protection
Regulation (EU) no. 1151/2012, ‘on quality schemes for agricultural products and foodstuffs’, ‘aims to help producers of agricultural products and foodstuffs communicate to buyers and consumers the characteristics and agricultural production methods of these products. Thus guaranteeing:
(a) fair competition for farmers and producers of agricultural and food products having value-adding characteristics and properties,
(b) the availability to consumers of reliable information about such products,
(c) the enforcement of intellectual property rights, and
(d) the integrity of the internal market’ (Article 1, Objectives. See footnote 1).
A ‘geographical indication,’ according to the aforementioned regulation, ‘is a name that identifies a product:
(a) originating in a particular place, region or country,
(b) to whose geographical origin a given quality; reputation or other characteristics are essentially attributable; and
(c) the production of which takes place for at least one of its stages in the delimited geographical area‘ (Article 5.2). (2)
‘Registered names are protected against:
(a) any direct or indirect commercial use of a registered name for products that are not the subject of registration, if those products are comparable to the products registered under that name or the use of that name enables the exploitation of the reputation of the protected name, including when such products are used as an ingredient,
(b) any usurpation, imitation, or evocation, even if the true origin of the goods or services is indicated or if the protected name is a translation or is accompanied by expressions such as “style,” “type,” “method,” “in the manner,” “imitation,” or the like, even where such goods are used as an ingredient,
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product used on the wrapping or packaging, in advertising material or on documents relating to the product in question, as well as the use, for packaging, of containers that are likely to mislead as to its origin,
(d) any other practice likely to mislead the consumer as to the true origin of the product‘ (reg. EU 1151/12, Article 13.1).
Balsamic vinegar of Modena v. Balema GmbH, the dispute
The Consortium for the Protection of Balsamic Vinegar of Modena PGI had warned Balema GmbH against using the terms ‘deutscher balsamico‘ and ‘balsamic,’ as illicit evocations of the Protected Geographical Indication. The German company, defeated in the first instance, had appealed.
The German Court of Appeals had recognized that it was permissible for Balema to use the term ‘balsamic‘ on vinegar products produced in Germany, inferring no violation of the ban on usurpation, evocation or imitation of protected indications of origin in the EU.
The Bundesgreichtshof-the Federal Court of Justice, referred by the Modenese Consortium-then made a preliminary reference to the European Court of Justice (ECJ). With the goal of obtaining an official and legally binding interpretation of reg. EU 1151/12.
EU Court of Justice, the judgment
The question put to the Court of Justice by referral is as follows. ‘Does the protection enjoyed by the designation ‘Aceto Balsamico di Modena’ as a whole also extend to the use of the individual non-geographical terms that make up that designation (‘Aceto’, ‘Balsamico’, ‘Aceto Balsamico’).'(3)
The Luxembourg judges adopted the conclusions filed by Advocate General Gerard Hogan on 7/29/19. (4) In poor, indeed very poor, words:
– Balsamic Vinegar of Modena (PGI) enjoys undisputed fame in both domestic and foreign markets. Thus, the product has a specific reputation,
– the name is registered and entered as a compound name in the register of PDOs and PGIs under reg. EC 583/2009, but
– the words ‘vinegar’ and ‘balsamic’ should be understood as common terms. ‘The protection of the name “Balsamic Vinegar of Modena” does not extend to the use of individual non-geographical terms of the same.’ (5)
EU Court of Justice, green light for imitations
‘On the one hand, it is undisputed that the term “vinegar” is a common term, as the Court has already found (…). On the other hand, the term “balsamic” is a translation, in the Italian language, of the adjective “balsamique,” which has no geographical connotation and which, as far as vinegar is concerned, is commonly used to designate a vinegar that is characterized by a bittersweet taste‘.
In fact, the Court of Justice grants the green light to imitations-or ‘evocations’ (6)-of balsamic vinegar, wherever produced. Contradicting that same logical path that had led the European legislature to recognize the ‘Balsamic Vinegar of Modena’ PGI, in spite of opposition from Germany, France and Greece. (7)
The only bastion of protection thus concerns geographical evocation. And it may be blockchain technology, in the hopefully near future, that will offer global consumers the guarantee of authenticity that Europe is proving to be unable to provide.
Dario Dongo
Notes
(1) See reg. EU 1151/12. See also http://www.ismeamercati.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/8507
(2)In contrast, ‘designation of origin’ is ‘a name that identifies a product:
– (a) originating from a certain place, region or, in exceptional cases, country,
– (b) the quality or characteristics of which are due essentially or exclusively to a particular geographical environment and its inherent natural and human factors, and
– (c) the production steps of which take place [entirely, ed.] in the demarcated geographical area‘ (EU reg. 1151/12, Article 5.1)
(3) See previous article Balsamic vinegar, a generic name? The word from the director of the Consortium for the Protection of Modena,
(4) See previous article.
Balsamic vinegar, green light to imitations from EU Advocate General.
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(5) Judgment of the Court (Fifth Chamber), 4.12.19. Case C-432/18, Consorzio Tutela Aceto Balsamico di Modena / Balema GmbH, at https://eur-lex.europa.eu/legal-content/IT/TXT/?qid=1575557167065&uri=CELEX:62018CJ0432
(6) V reg. EU 1151/12, Art.13.1.b. On the concept of ‘evocation,’ see previous articles https://www.greatitalianfoodtrade.it/etichette/dop-la-corte-di-giustizia-ue-chiarisce-il-divieto-di-evocazioni, https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/olio-extravergine-d-oliva-100-siciliano-risponde-l-avvocato-dario-dongo
(7) The European Commission had at the time requested the opinion of the Scientific Committee for PDOs, PGIs and TSGs. Which, in its own opinion issued unanimously on 6.3.06, had affirmed that the designation ‘Balsamic Vinegar of Modena enjoys an undisputed reputation in both domestic and foreign markets, as evidenced by its frequent use in numerous culinary recipes in different member states, its strong presence on the Internet and in the press or media‘
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
