Dressing down for The Consortium for Balsamic Vinegar of Modena
Balsamic vinegar manufacturers (outside of Modena) can use the terms 'aceto' and 'balsamico' following a decision made by the CJEU relating to protected geographical indications.
This case concerns the CJEU's ruling over a protected geographical indication (PGI) that was disputed between Balema, the German vinegar producer, and The Consortium for Balsamic Vinegar of Modena (The Consortium).
Balema have been producing vinegar-based products from the Baden region for over 25 years, some of which are labelled as 'Balsamico' or 'Deutscher balsamico'.
The Consortium, who are an association of manufacturers of the product whose name was registered as a PGI 'Aceto Balsamico di Modena', believed that the use of the word 'balsamico' by Balema infringed their PGI.
In response to the claim, Balema sought a declaration from the German courts that they be permitted to use the term 'balsamico'. After dismissal at first instance, Balema appealed and it was held on appeal that there was no infringement as they were not using the PGI as a whole. The Consortium appealed this decision to the Federal Court who then deferred to the CJEU on the following question:
'Does the protection of the entire name "Aceto Balsamico di Modena" extend to the use of the individual non-geographical components of the term as a whole ("Aceto","Balsamico","Aceto Balsamico")?'
Although it was held that the PGI has an 'undeniable reputation on the national and international market' the CJEU found that it did not extend to protect the individual non-geographic words. The Court looked at Article 13 (1) of Regulation 2081/92 which essentially states that protection will not be afforded to 'foodstuff which is considered generic'. As a result, the Court found that, 'aceto' meaning oil, and 'balsamico' an adjective meaning bitter-sweet (which is commonly associated with vinegar) were generic words and so were therefore not protected under the Regulation.
Furthermore, as detailed in Recital 10 of Regulation 583/2009, the registration of 'Aceto Balsamico di Modena' as a PGI was originally objected to by Germany and Greece. They argued that the words 'balsamico' and 'aceto' were generic and that 'aceto balsamico' was already an established product on the market outside of Modena. The Recital responds to these objections by stating that the protection would be granted on the basis that:
1) the protection is granted to the term…as a whole; and
2) individual non-geographical components of that term may be used…throughout the Community.
This Recital unequivocally clarifies that the protection is solely granted to the PGI as a whole. Finally, using another Italian-associated product as an example, Advocate General Hogan opined that although 'Prosciutto di Parma' is registered as a PGI, there was hardly an argument for preventing other producers from using the word prosciutto or ham!
Comments / Practical Tips
The ruling is important as it highlights the limitations of the protection that is afforded under PGIs. Any business that has registered a compound PGI may want to consider whether its constituent parts will be covered by the relevant regulations.
In addition, the ruling clears the way for producers to clearly indicate to customers their product's characteristics. If the Court had found in favour of The Consortium, a number of products with labels containing terms forming parts of PGIs, such as 'balsamic' or 'prosciutto' would have had to be changed. Businesses should not however see this as an opportunity to mislead customers - it is still an infringement of the regulations to evoke the PGI by other means, such as through pictures (even if the PGI is not used).
Finally, the European Commission has launched a public consultation on geographical indications and traditional specialities guaranteed. The commission is seeking feedback from any interested party from producers to researchers so do get involved or get in touch to discuss.