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Press Release: PROTECION OF “ACETO BALSAMICO DI MODENA”: THE OPINION OF THE ADVOCAT GENERAL DOES NOT EXCLUDE “EVOCATION”

Press Release: PROTECION OF “ACETO BALSAMICO DI MODENA”: THE OPINION OF THE ADVOCAT GENERAL DOES NOT EXCLUDE “EVOCATION”

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Press Release


PROTECION OF “ACETO BALSAMICO DI MODENA”: THE OPINION OF THE ADVOCAT GENERAL DOES NOT EXCLUDE “EVOCATION”

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FOR IMMEDIATE RELEASE  Contact Massimo Vittori
Geneva, 13 August, 2019  massimo@origin-gi.com

At the end of July the Advocate General at the Court of Justice of the European Union published his conclusions concerning a request for a preliminary ruling submitted to the Court (C-432/18) on the protection of the PGI “Aceto Balsamico di Modena”. Parties to the case are the Consortium responsible for the PGI and the German company Balema GmbH.

The Advocate General’s opinion, does not represent the ruling. It contains a suggestion to the legal analysis of the case, intended to support the Court in drafting the final decision expected to be published by December.

Given those premises, the opinion contains interesting elements: : I it is stated that “balsamico” does not represent a “generic name” pursuant to the basic Regulation and it acknowledges that there is an association between the word “balsamico” and the PGI “Aceto Balsamico di Modena”, which could be evidence of evocation (to this regard, the Advocate General Hogan states: “the word “balsamico” is certainly closely associated, in the mind of many consumers, to the product made by the Consortium”); As a conclusion, it is determined to be the decisive element how the word is perceived by the ‘average consumer who is reasonably well informed and reasonably observant and circumspect’ and this would be a matter ultimately for the national court. It is also stated that the use of the individual component “Balsamico” may be allowed only upon condition that all the principles and rules applicable in the Community’s legal order are complied with. Along with these elements, the Advocate General has also expressed other considerations on the relationship between “generic names” pursuant to the basic Regulation and common words and, in the final part, he has only pointed out the fact, which is quite well known, that the single words in the entire name “Aceto Balsamico di Modena” (PGI) are not subject of protection of the designation as a whole.

The opinion certainly does not exclude the possibility that this case may be assessed by the national Courts on the basis of PGI evocation. On the other hand, it reasserts the concept expressed in “Recital Point 10” of Regulation (EC) 583/2009, stressing that the terms “aceto”, “balsamico” and “aceto balsamico” may be used only upon condition that the principles and rules applicable in the Community’s legal order are complied with. While in answering the question asked by the German Federal Court, the opinion does not explicitly refer to “evocation” as to the concrete cases, this cannot be interpreted as basis for an allowance of the use of the word “Balsamico” for vinegar condiments.

“The main topic of the case, “evocation”, has not been analysed in an exhaustive manner – commented Massimo Vittori, the managing Director of oriGIn, the global alliance of GIs groups – even if it is in our view the real core of the dispute. The crucial point is rather the discussion whether the use of a single word, specifically the Italian term “Balsamico”, under certain circumstances, could amount to evocation of the PGI. We are confident the Court will address this point in order to provide the national courts with guidelines to judge about conflicts caused by vinegar based products distributed under the name “Balsamico”. Actually the Court, according to its consolidated case-law on “evocation”, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its decision.”

 

“The main topic of the case, “evocation”, has not been analysed in an exhaustive manner even if it is in our view the real core of the dispute. The crucial point is rather the discussion whether the use of a single word, specifically the Italian term “Balsamico”, under certain circumstances, could amount to evocation of the PGI. We are confident the Court will address this point in order to provide the national courts with guidelines to judge about conflicts caused by vinegar based products distributed under the name “Balsamico” 

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