The Court of Justice of the European Union (hereafter, CJEU), in the Judgement of 20 December 2017, C-393/16, has responded to several very interesting questions about the use of a PDO in products which are not products protected under said PDO but do contain protected product as an ingredient.
In particular, the case concerned a packaging where the expression “CHAMPAGNER SORBET” was depicted as a dominant expression. The Court was asked whether, under the relevant circumstances, said use constitutes an infringement of the PDO consisting of (a) taking unfair advantage of the PDO and (b) misuse, imitation or evocation. In addition, the Court was asked whether it might exist and infringement of a PDO where it exist no risk of deception as to the geographical origin of the product but it does exists regarding other characteristics of it.
In that regard, the CJEU stated that said use takes advantage of the PDO where the final product does not have, as main characteristic, a flavour essentially produced by the presence of the relevant ingredient. Sensu contrario, it can be interpreted that said use does not take advantage of the PDO if the flavour is mainly produced by the ingredient protected under the PDO. On the other hand, the Court stated that said use does not constitute misuse, imitation or evocation.
Finally, the Court stated that an infringement of the PDO is not only produced where the indications used are false and misleading as to the geographical origin of the product, but also where those indications are false and misleading as to the nature or the main characteristics of said product.
