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Black Forest ham (Schwarzwälder Schinken) may be referred to as such even if it is not sliced and packaged in the Black Forest. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court (Az.: I ZB 72/19).
Geographical indications of origin can be protected in a similar manner to trademarks, something which can prove to be particularly important because of consumers associating a certain level of quality with a product’s geographical origin in some instances. We at the commercial law firm MTR Rechtsanwälte note, however, that it is disputed whether the protection afforded to a geographical indication of origin applies to all stages of production or the further processing of the product.
In the case of Black Forest ham, the BGH ruled in a recently published judgment from September 3, 2020 that it can be referred to as such even if it is not sliced and packaged in the Schwarzwald.
The case was part of a long-running legal dispute. The term “Schwarzwälder Schinken” has been protected since as early as 1997. In 2005, an association set up to protect the interests of Black Forest ham producers – the Schutzverband der Schwarzwälder Schinkenhersteller – wished to expand upon this protection in response to ham being increasingly sold in slices rather than in one piece. The association took the view that it should be a requirement to establish that the commercial slicing and packaging of the ham also took place in the Black Forest in order for someone to be able to use the protected term “Schwarzwälder Schinken”.
The European Court of Justice had already expressed its concerns on the matter, opining that while a ban on further processing outside the relevant geographical area can be justified, it needs to be a necessary and proportionate measure in order to maintain the quality of the product or guarantee its origin. The court noted, however, that the decision whether or not to allow Black Forest ham to be further processed outside of the Black Forest needs to be taken by German courts.
The Bundespatentgericht – Germany’s Federal Patent Court – subsequently ruled that Black Forest ham does not need to be sliced in the Black Forest, with this decision having since been upheld by the Bundesgerichtshof.
The BGH held that expanding the protection of the geographical indication of origin was necessary neither on grounds of quality assurance nor ensuring the effectiveness of inspections, noting that checks examining whether ham slices are no more than 1.3 millimeters thick and whether the cutting equipment is being properly cleaned can also be conducted outside the Black Forest, as this does not require product-specific know-how.
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