European Union

AG’s opinion in Case C-783/19, Comité Interprofessionnel du Vin de Champagne v GB

Evocation in bubbles
June 7, 2021

AG’s opinion in Case C-783/19, Comité Interprofessionnel du Vin de Champagne v GB

Based on the regulations governing them, protected designations of origin (PDOs) and protected geographical indications (PGIs) are protected from any conduct that involves a “misuse, imitation or evocation” of the PDO or PGI (article 103 Regulation 1308/2013 of December 17 on wines).

As it is often the case with industrial property rights, the concept of “evocation” is difficult to define. Therefore, it is the source of great controversy regarding these rights, giving rise to numerous court rulings.

In one of them (Supreme Court Judgment of March 1, 2016, Champagne v Champin), the Supreme Court defined the scope of evocation protected under these rights by statingthat, Not all types of evocation can be the basis of an infringement; instead, the infringement must be linked to the protection afforded to designations of origin. The product to which the sign Champin is applied and its recipients differ to such an extent as regards the products protected by the name “Champagne” that the phonetic similarity of the signs does not lead to… evocation.” This limitation to the concept of evocation was raised again before the CJEU, in a case also emanating from the Spanish courts and concerning the same PDO: Champagne v Champanillo (case C-783/19).

The Provincial Court of Appeals of Barcelona has asked the CJEU to clarify the scope of evocation regarding (i) whether the protection offered by the evocation of a PDO on a product affects the distribution services of that product; (ii) whether it must be held to refer to the same or similar products or products that include those protected by the PDO; (iii) whether it must be objectively assessed or be assessed based on the greater or lesser proximity of the affected products; and (iv) finally, whether it is a specific type of protection or it must be linked to unfair competition. Ultimately, as in the case of Campin, the issue is what the scope of protection is when evocation of products or services other than those protected by the PDO is claimed.

Unsurprisingly, the AG’s position on these matters is, first, that protection extends to distribution services. It is more interesting, however, that the AG rejects the need that products be comparable or close. The AG is in favor of doing away with criteria based on confusing or misleading consumers to focus instead on the mental association between the disputed sign and the product covered by the PDO or PGI. Thus, even if the proximity of products or services is a factor to be taken into account within the circumstances of the case, it is not, in his opinion, a necessary requirement for protection. This means that unfair competition is not required either.

The AG proposes a broad interpretation of the concept of evocation, diverging from the Spanish Supreme Court’s interpretation in the Campin case and going beyond the protection received by other signs such as trademarks.

We will follow this case to see how the CJEU finally defines the concept of evocation and the extent of protection of PDOs and PGIs.

Author: Jorge Llevat

June 7, 2021