Champagne sorbet

An explanation of the EuGH (European Court of Justice) judgement of 20.12.2017

+The Interindustry Champagne Committee (Comité Interprofessionnel du Vin de Champagne; CIVC) is noted for its resolute intervention when the term “Champagne” is used improperly. The description “Champagne” is a Protected Designation of Origin (PDO) protected by European Union law, which means not only that the raw materials (grapes) must originate from the Champagne region, but also that their processing to make Champagne wine must take place in accordance with specified quality and process characteristics.

Instances of inadmissible use of the description can occur if, for example, it is used to describe comparable products originating from somewhere other than the Champagne region, or if it refers merely to a manufacturing process resembling the Champagne method.

The first instance would involve an incorrect indication of origin, and in the second instance the reference to Champagne would be inadmissible because in the case of brands and protected designations of origin, even a description of similarity like “in the style of” is prohibited, to ensure that the region’s brand or reputation is not progressively “diluted” by hangers-on. However, even products manufactured in the Champagne region are allowed to call themselves “Champagne” only if they satisfy the qualitative and process-related requirements applying to Champagne. The question as to whether and under what conditions other foods such as sorbets or truffles are permitted to use the description Champagne if they thereby intend to indicate only that champagne was used as an ingredient has remained unanswered up to now.

The Interindustry Champagne Committee (CIVC), which is the Champagne industry’s protective association, has issued warnings on this point to various food manufacturers. For example, in Germany the latter range from ALDI Champagne sorbet and a Champagne truffle to a Champagne wine-sauerkraut. This triggered several legal disputes whose provisional conclusion (following an Order for Reference to another court by the German Federal Supreme Court/BGH) [1] is marked by a decision of the European Court of Justice [2], which is explained below.

Consequently, the Luxemburg Court of Justice was required to decide questions relating to the law of brands/trademarks, origin and competition. Unraveling these in detail here would be going too far, and the specialist legal literature should be referred to in this regard. Thus the intention here is to explain only the result of the decision that is significant for practical purposes:

In ten printed pages, the European Court of Justice reached the conclusion that, from all the relevant points of view, the description “Champagne sorbet” is permissible under the following conditions (and only under these conditions):

+ “Champagne must actually have been used as an ingredient.”

+ “The type-typical flavor of Champagne sorbet must be based exclusively on the use of Champagne (and not on other alcoholic liquors or aromas/flavorings).”

+ “In other words: Champagne must be used in a quantity sufficient to impart the taste.” (I.e. no ‘homeopathic’ tricks!)

The German Federal Supreme Court’s request for reference to a higher court did not require the European Court of Justice to express an opinion on another variant of the scenario, which has more of a competition law nature and had already been answered by the German Federal Supreme Court: to what extent is it permissible to use the prestige of world-famous brands for one’s own products when it is clear that the branded products do not come into question as “ingredients” of one’s own products. Examples of such cases might be:

+ “The Champagne among minerals waters” [3]

+ “The Rolls-Royce of whiskies” [4]

+ “Get Champagne, pay for sparkling wine” (computer advertising) [5]

The jurisdiction in this case always expressed the unanimous view that no-one is allowed to exploit the prestigious reputation of world-famous brands for their own commercial purposes without the brand owner’s approval.

One might now imagine that the European Court of Justice decision has said all that needs saying. But what does the reader think of the following question: is one allowed to express one’s feelings as a businessman by saying “I’m in a Champagne mood!” without having imbibed a sufficient amount of the beverage? The Court of Justice did not consider that question any more than the question of whether “heavenly delight” constitutes an indication of origin.

[1] Decision of 2.6.2016 - I ZR 268/14

[2] Judgement of 20.12.2017 – Case C‐393/16

[3 The judgment by the German Federal Supreme Court (BGH) in 1987 has been superseded by changes to legislation.

[4] BGH, judgement of 9.12.1982 - Rolls-Royce - I ZR 133/80)

[5] BGH, judgement of 17.1.2002 - I ZR 290/99 +++