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EU: Hangover for PDOs

Producers of champagne probably did not have a toast to the recent ruling of the CJEU about protected designations of origin (PDOs). The CJEU has broadened the possibilities for commercial parties to use PDOs, such as "champagne", opening the door to various (allowed) usages of PDOs for products that do not correspond to the product specifications.

The case started when foodstuffs company Aldi was sued by CIVC (an association of champagne producers) over the use of the name "Champagner sorbet" in connection with a sorbet product with a champagne flavor. CIVC claimed that Aldi was exploiting the reputation of the PDO "champagne" and therefore misusing the word "champagne", referring to the strict rules that apply to the use of PDOs.

The court first established that the regulation regarding the organisation of the markets in agricultural products also applies in case the product for which a PDO is used contains an ingredient that corresponds to the product file. So as a result, the claims against Aldi can be made under this regulation. Further in the decision, the court reaffirms one of the ratios of protecting PDOs, namely to offer a guarantee of quality.

However, not every use of a PDO for a product that contains one of the relevant ingredients is forbidden, and the mere use in itself does not constitute an unlawful act. The circumstances of each case need to be taken into account for such determination. The CJEU further holds that the use of the PDO is not unlawful if the product contains an ingredient that confers on the foodstuff involved one of its essential characteristics. In particular, where the name of the foodstuff indicates that it contains an ingredient protected by a PDO, which is intended to convey the taste of the foodstuff, the taste imparted by that ingredient must constitute the essential characteristic of that foodstuff. In other words, the use of a PDO by a commercial party is considered lawful if the foodstuff involved has the same taste as the foodstuff for which the PDO is protected.

Manufacturers of foodstuffs will be happy to learn that they can use PDOs more liberally. The possibilities for them to create the same flavors seem endless, and no doubt many manufacturers will follow Aldi.

Jurriaan Cleuver

V.O.Carnegieplein 5, 2517 KJThe HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

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