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Editorial

BGH – Champagne must define the taste of a champagne sorbet

January 2019 - Intellectual Property. Legal Developments by GRP Rainer LLP.

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A champagne sorbet needs to actually taste like champagne; otherwise, this description cannot be used. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from July 19, 2018 (Az.: I ZR 268/14).

Not unlike in the case of brands, it is also possible to protect designations of origin on the grounds that consumers may associate geographical indications of origin with a certain quality. We at the commercial law firm GRP Rainer Rechtsanwälte note that a protected designation of origin is considered to have been unlawfully exploited if its reputation is exploited.

The legal dispute between a discount supermarket selling ice cream featuring the description “Champagner Sorbet” (German for “champagne sorbet”) and an association of wine growers from the Champagne region has occupied the courts for years. The wine growers viewed the description as a violation of the designation of origin “Champagne”.

The Bundesgerichtshof referred the case to the European Court of Justice (ECJ). The ECJ held that the reputation of a protected designation of origin is considered to have been unlawfully exploited if the intent behind using the designation is to profit from its reputation without permission. The Court noted that this could be the case with “Champagner Sorbet”, since consumers associate this with a certain level of quality and price category. The ECJ went on to state, however, that if the product’s taste comes primarily from the champagne used in its making then there are no grounds for objecting to the use of the description “Champagner Sorbet”.

The BGH has since ruled that the designation of origin “Champagne” is deemed to have been unfairly exploited if in spite of the product containing champagne this does not define its taste. Furthermore, the champagne in the product can be said not to define its taste if despite tasting like a wine-based product the taste comes primarily from other ingredients and not the champagne. 

The Court also held that if the taste of a food product referred to as “Champagner Sorbet” cannot be attributed to champagne as an ingredient, this is deemed to be misleading to consumers. The use of the term “Champagner” was said to be a strong indication to consumers that the product tastes like champagne and that the latter’s use as an ingredient is what defines the taste. The Oberlandesgericht München, the Higher Regional Court of Munich, must now determine what property defines the relevant product’s taste.

Violations of trademark or copyright law can be met with severe penalties. Lawyers who are experienced in the field of IP law can advise businesses on enforcing or fending off claims.

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