Morbier cheese?
scope of protection
of a PDO
Morbier cheese?
scope of protection
of a PDO
from
Certain foods such as fruit and vegetables, fish, meat and cheese can be protected throughout the EU as geographical indications or designations of origin. The product is characterized by the fact that it comes from a specific place, a specific region or a specific country. But what does the protection apply to? Is it limited to the product name or does it go beyond that? The ECJ provides an answer.
Morbier cheese
Morbier” is a raw milk cheese from a specific region in France. This cheese is characterized by its appearance – there is a horizontal black stripe in the middle. Since December 22, 2000, “Morbier” has had a
Another French cheese producer is not based in the area for which the name ‘Morbier’ is reserved. He sells a cheese that does not bear the name “Morbier”, but which also has a horizontal black stripe.
The French cheese manufacturer was sued by a French association in 2013. The association is of the opinion that the defendant infringes the protected designation and acts unfairly and exploits its reputation by producing and marketing a cheese that adopts the external appearance of the product covered by the protected designation of origin “Morbier” in order to cause confusion with it and to exploit the reputation and prestige associated with it without having to comply with the specification of the designation of origin.
In 2016/2017, the action was dismissed in several instances by Paris courts on the grounds that the regulation on the protected designation of origin was not intended to protectthe appearance of a product or its characteristics described in the specification, but rather its name.The adoption of the appearance of a product falls under the freedom of trade and commerce.
Following an appeal, a question was referred to the ECJ for a preliminary ruling on the interpretation of the relevant regulation.
The ECJ’s decision on the scope of protection of a designation of origin
The European Court of Justice takes a different view to the Paris judges and ruled in its judgment of 17.12.2020 – C-490/19 that Article 13(1) of Regulations No 510/2006 and No 1151/2012 must be interpreted as meaning that it does not merely prohibit the use of the registered name by a third party and that it prohibits the representation of the shape or appearance characteristic of a product covered by a registered name where such representation is likely to lead the consumer to believe that the product in question is covered by that registered name.
The ECJ confirms that the purpose is not
the use of manufacturing techniques or the representation of one or more characteristic properties indicated in the specification of a product covered by a registered name
to prohibit a third party. However, protected designations of origin are protected in so far as they designate a product which has a specific quality or specific characteristic. Thus, the protected designation of origin and the product it covers are closely linked.
If the reproduction of the shape or appearance of a product protected by a registered name, without that name appearing on the product in question or on its outer packaging, is likely to mislead the consumer as to the true origin of the product in question, this may, according to the ECJ, fall within the scope of the provision.
The legal dispute is still pending before the referring French court. The ECJ’s decision on the interpretation of the regulation must now be taken into account.
Conclusion
The protection of a protected designation of origin may not be limited to the protection of the name. A protected designation of origin can also protect against imitation of an appearance that is too similar.
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