On 22 February, the Advocate General of the European Court of Justice (ECJ) gave an interesting opinion on a case concerning the potential evocation of GIs (SWA v Klotz re Glen Buchenbach – C-44/17).
The case before the Court of Hamburg opposes the Scotch Whisky Association (SWA) and a distillery located in Germany, which produces and markets whisky under the designation ‘Glen Buchenbach’. The product’s label also indicates ‘German product’. The SWA considers that the use of the term ‘Glen’ in connection with whisky infringes the GI ‘Scotch Whisky’ as it is liable to cause consumers to make an inappropriate connection to the GI and to mislead them as to the true origin of the product. Following the action initiated by the SWA, the Court of Hamburg asked the EJC to interpret EU legislation on GIs spirit drinks (Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks), in particular with respect to the concept of ‘evocation’.
The Advocate General made some interesting considerations:
- the disputed denomination does not necessarily require phonetic and visual similarity with the GI at issue for it to constitute an ‘evocation’ of that GI. In the absence of phonetic and visual similarity, it is necessary to take account of the conceptual proximity existing between the GI in question and the disputed denomination. If this proximity is of such a nature as to lead the consumer to have in mind, as reference image, the product whose GI is protected, it is an ‘evocation’. It is up to the Court of Hamburg to determine if, in the present case, when the average European consumer is confronted with a comparable product bearing the denomination ‘Glen’, the image triggered directly in his mind is that of ‘Scotch Whisky’.
- to establish the existence of an ‘evocation’ or a ‘false or misleading indication liable to convey a false impression as to [the] origin’ of the relevant product, it is not necessary to take account of additional information in the description, presentation or labelling of the product concerned, in particular that relating to the true origin of the product (in this case, the fact that the label indicates that it is a German product). It is irrelevant that the disputed designation corresponds to the name of the undertaking and/or the place where the product is manufactured.
The Advocate General’s Opinion is not binding on the ECJ judges, who are now beginning their deliberations in this case.
oriGIn considers protection against ‘evocation’ a powerful tool for PDO, PGI and GIs.