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Thursday, 19 April 2007

BRUT beer ruling: the ECJ says yes, among other things

Scarcely had the ink dried (metaphorically speaking) on the IPKat's brief posting on the ECJ's ruling in CELLTECH when he realised that his main task of the day still lay before him: to celebrate the ECJ's ruling in Case C-381/05, a reference for a preliminary ruling from the Cour d’appel, Brussels, in De Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne, Veuve Clicquot Ponsardin SA.

In short, De Landtsheer produces the premium brand Malheur beer. In 2001 it launched ‘Malheur Brut Réserve’, a made by the production method for sparkling wine and for which it sought a suitably sparking marketing policy. Terms such as ‘BRUT RÉSERVE’, ‘La première bière BRUT au monde’ (‘The first BRUT beer in the world’), ‘Bière blonde à la méthode traditionnelle’ (‘Traditionally‑brewed light beer’) and ‘Reims-France’ and references to winegrowers of Reims and Épernay appeared on its bottles and associated materials. At the launch it was called ‘Champagnebier’ to make the point that it was a beer made according to the ‘méthode champenoise’ (champagne method).

The organisation of manufactures of certain expensive French bubbly wines sued De Landtsheer before the Tribunal de commerce de Nivelles on the basis that the use of these terms was misleading and did not constitute lawful comparative advertising. The Tribunal was of two minds, granting injunctions against some of the terms objected to, but not ‘BRUT’, ‘RÉSERVE’, ‘BRUT RÉSERVE’ or ‘La première bière BRUT au monde’. De Landtsheer stopped using ‘Champagnebier’ but appealed in relation to all other elements of the case and the French bubbly makers, not to be outdone, cross-appealed. The Belgian judges felt that, with these big French guns blazing away, they needed some help from across the border in nearby Luxembourg. Accordingly the asked the ECJ the following questions:

"(1) Does the definition of comparative advertising cover advertisements in which the advertiser refers only to a type of product, so that in those circumstances such advertisements must be regarded as referring to all undertakings which offer that type of product, and each of them can claim to have been identified?

(2) With a view to determining whether there is a competitive relationship between the advertiser and the undertaking to which reference is made within the meaning of Article [2(2a)] of the directive:

(a) On the basis in particular of a comparison of Article [2(2a)] with Article [3a(1)(b)] should any undertaking which can be identified in the advertising be regarded as a competitor within the meaning of Article 2(2a), whatever the goods or services it offers?

(b) In the event of a negative response to that question and if other conditions are required in order for a competitive relationship to be established, is it necessary to consider the current state of the market and consumer habits in the Community or is it necessary also to consider how those habits might evolve?

(c) Must any investigation be confined to that part of the Community territory in which the advertising is disseminated?

(d) Is it necessary to consider the competitive relationship in relation to the types of products being compared and the way in which those types of products are generally perceived, or is it necessary, in order to assess the degree of substitution possible, to take into account also the particular characteristics of the product which the advertiser intends to promote in the advertising concerned and the image it intends to give it?

(e) Are the criteria by which a competitive relationship within the meaning of Article 2(2a) can be established identical to the criteria for verifying whether the comparison satisfies the condition referred to in Article [3a(1)(b)]?

(3) Does it follow from a comparison of Article 2(2a) of [the directive] with Article 3a of that directive either that

(a) no comparative advertising is permitted enabling a type of product to be identified where no competitor or goods offered by a competitor can be identified from that reference?

or

(b) the question whether the comparison is permitted must be considered in the light only of national legislation other than that by which the provisions of the directive on comparative advertising are transposed, which could lead to a lower level of protection for consumers or undertakings offering the type of product being compared with the product offered by the advertiser?

(4) If it should be concluded that there has been comparative advertising within the meaning of Article 2(2a), [must it] be inferred from Article 3a(1)(f) of the directive that no comparison is permitted which, in respect of products without designation of origin, relates to products with designation of origin[?]".
The ECJ ruled as follows this morning:
"1. Article 2(2a) of ... Directive 84/450 ..., as amended ..., is to be interpreted as meaning that a reference in an advertisement to a type of product and not to a specific undertaking or product can be considered to be comparative advertising where it is possible to identify that undertaking or the goods that it offers as being actually referred to by the advertisement. The fact that a number of the advertiser’s competitors or the goods or services that they offer may be identified as being in fact referred to by the advertisement is of no relevance for the purpose of recognising the comparative nature of the advertising.

2. The existence of a competitive relationship between the advertiser and the undertaking identified in the advertisement cannot be established independently of the goods or services offered by that undertaking.

In order to determine whether there is a competitive relationship between the advertiser and the undertaking identified in the advertisement, it is necessary to consider:

– the current state of the market and consumer habits and how they might evolve,

– the part of the Community territory in which the advertising is disseminated, without, however, excluding, where appropriate, the effects which the evolution of consumer habits seen in other Member States may have on the national market at issue, and

– the particular characteristics of the product which the advertiser seeks to promote and the image which it wishes to impart to it.

The criteria for establishing the existence of a competitive relationship within the meaning of Article 2(2a) of Directive 84/450, as amended ..., are not identical to those for determining whether the comparison fulfils the condition in Article 3a(1)(b) of the same directive.

3. Advertising which refers to a type of product without thereby identifying a competitor or the goods which it offers is not impermissible with regard to Article 3a(1) of Directive 84/450, as amended .... The conditions governing whether such advertising is permissible must be assessed in the light of other provisions of national law or, where appropriate, of Community law, irrespective of the fact that that could mean a lower level of protection for consumers or competing undertakings.

4. Article 3a(1)(f) of Directive 84/450, as amended ..., must be interpreted as meaning that, for products without designation of origin, any comparison which relates to products with designation of origin is not impermissible".
The IPKat wishes that ECJ rulings carried neat little executive summaries that say things like "It all depends on the facts but, as things stand, it looks like De Landtsheer can carry on doing it ...". Merpel adds, the real problem with things like, for example, Champagne, is that they are treated by the industry as though they were nothing but geographical designations, while they are treated by a wide segment of the public as though they either exclusively or additionally designate a commodity that has specific physical characteristics that are not unique to it - such as being bubbly, alcoholic and fun to drink. We live in a world in which terms like Champagne, Chanel, Rolls Royce, Dior and Barbie perform dual functions, being trade marks/designations and cultural icons: the law is obliged to protect their owners against adverse uses of the first kind, but in the second case the issues involved are entirely different.

Make your own Champagne-like wine here
Spanish Champagne here

4 comments:

Anonymous said...

Why not use a different marketing strapline: "The Rolls Royce of beers". Hee Hee.

Ilanah said...

I think you're being unfair here. This is a pretty wide decision which adopts an expansive approach to permissible comparative advertising. However,it's funny that Art.3a(1) applies only in competing goods situations, yet the ECJ appears willing to export it to ALL situations (both competiting and non-competing) when constructing the honest practices proviso of Art.6 of the Trade Marks Directive.

Truly horrible triple negative in point 4 of the operative part of the ECJ's judgment.

Jeremy said...

I don't think I'm being unfair. What I object to is not so much the decision itself - I welcome its width - as the lack of clarity with which it is expressed and the oracular form of analysis that makes the reader forget that the analysis ever had something to do with a real set of facts that could happen again one day.

Not sure I understand the import of your comment on Article 3a(1)/Art.6 TM Directive. Can you clarify?

Ilanah said...

Certainly. To define the Art.6 honest practices proviso in Gillette, the ECJ uses criteria that it lifts from Art.3a(1). At risk of blowing my own trumpet, I deal with this subject in (excrutiating) length in my article which is coming out in the May IPQ.

The BRUT case highlights that the comparative advertising directive (and hence Art.3a(1)) applies only to situations involving directish competiors. However, Art.6 is, in theory at least, a defence to ALL types of trade mark infringement, whether the goods are similar or dissimilar (though why this may not be true is also something I rant on about in my IPQ piece).

Hence, in Gillette, the ECJ has taken something designed only for competing goods situations and applied it to ALL trade situations.

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