On May 2, the Court of Justice of the European Union issued a very relevant Judgment in the field of designations of origin and geographical indications as a result of preliminary questions submitted by the Spanish Supreme Court. Berenguer & Pomares represented the Regulatory Council of the PDO “Manchego Cheese” in the aforementioned procedure and its Managing Partner, Mario Pomares, took part in the hearing held in Luxembourg.
The Judgment of the CJEU of May 2, 2019 (Case C-614/17) represents a great step forward in the interpretation of the concept of ‘evocation’ of a designation of origin or a geographical indication, prohibited by Article 13 of Regulation 510/2006, on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (current Regulation 1151/2012). Specifically, this Judgment goes beyond what has been established so far by the existing jurisprudence around the concept of ‘evocation’, a key concept to set the scope of protection enjoyed by all registered appellations of origin and geographical indications registered under the sui generis system of the European Union.
In the main proceedings, initiated in 2012 and pending before the Supreme Court, it had to be determined whether the commercialization of cheeses (not covered by the PDO Cheese Manchego) using labels in which the drawing of a gentleman identifiable with the character of Don Quixote de La Mancha, a famished horse identifiable with the character of Rocinante, landscapes with windmills typical of La Mancha and sheep, as well as the term “Rocinante cheeses”, constitute a violation of the Manchego Cheese DOP. Both the court of first instance (Commercial Court of Albacete) and the second instance (Provincial Court of Albacete), dismissed the claims of the Regulatory Council on the basis that the figurative and word signs used by the defendant do not show similarity visual or phonetic with the protected name (Manchego Cheese) and that such signs constitute an evocation of La Mancha but not of the Manchego Cheese DOP, such evocation being legitimate since the products for which such signs are used are produced in said region .
Once the cassation appeal was accepted, the Supreme Court addressed three questions to the CJEU:
1) Whether the DOP evocation can be produced by the use of graphic signs that evoke the DO.
2) Whether the use of signs that evoke the region to which the PDO is linked can be considered as an evocation of the PDO itself.
3) Whether the concept of the average consumer reasonably well informed and reasonably attentive and careful should be understood as referring to a European consumer or may be unserstood as referred only to the consumer of the Member State in which the product that gives rise to the evocation is manufactured.
With respect to the first question, the Judgment clearly establishes that the evocation can occur through the use of figurative signs, provided that the mentioned element can bring directly to the mind of the consumer, as a reference image, the product protected by the relevant PDO or PGI.
Regarding the second question, the Judgement establishes that the use of figurative signs that evoke the geographical area to which a denomination of origin is linked can constitute a prohibited evocation even in the event that said figurative signs are used by a producer established in the region but whose products are not covered by the PDO.
Regarding the third question, which may seem less important given the Court’s previous pronouncements on the concept of the average consumer who is reasonably well informed and reasonably observant and careful, the CJEU clarifies that this concept includes consumers in the Member State in which the product at stake is manufactured and consumed mostly. As the concluded by the Court, the relevant circumstance is that an effective and uniform protection of designations of origin in any part of the territory of the European Union against any evocation is guaranteed.
The Sentence has not only attracted the attention of the most important national media (for example, the newspaper El País or Televisión Española), but it has transcended borders, also being news in The New York Times or Bloomberg.
