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Wednesday, 27 February 2008

More on Parmesan

Yesterday the IPKat picked up on the European Court of Justice ruling in the Parmesan dispute (Case C-132/05 Commission of the European Communities v Federal Republic of Germany). He promised to say more about it, so here goes ...

Right: German manufacturers of Parmesan cheese worry that their business is in meltdown following the ECJ ruling

Prompted by complaints by what the court calls several "economic operators" [says the IPKat, presumably this is a code name for "legitimate manufacturers of and traders in cheeses bearing Parmesanesque designations of origin"], the Commission asked the German authorities to give clear instructions to the government bodies responsible for the combating of fraud to stop the marketing on German soil of products designated as ‘Parmesan’ but which did not comply with the specification for the PDO ‘Parmigiano Reggiano’ (according to the Commission, 'Parmesan' was a translation of the PDO ‘Parmigiano Reggiano’ and its use infringed a PDO which was protected by Council Regulation 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs ).

The German Government said nein: in its view, while the term ‘Parmesan’ had historical roots in the region of Parma, it had become a generic name for hard cheeses of diverse origins, grated or intended to be grated, distinct from the PDO ‘Parmigiano Reggiano’. Accordingly its use infringed no PDO rights. The Commission disagreed and commenced these proceedings.

The European Court of Justice rejected the argument that a PDO enjoys protection only in the exact form in which it is registered. It accepted that PDOs could become generic, citing the examples of Camembert and Brie [says the IPKat, that's a big concession: under Article 13(3) of the Regulation, "Protected names may not become generic."], but concluded that Germany had not proved that Parmesan had itself become generic: unauthorised use of the term was thus an infringement. The court nonetheless dismissed the Commission's action. Thwe key bit of the decision is Article 10(4) of the Regulation. When it provides that,

‘[i]f a designated inspection authority and/or private body in a Member State establishes that an agricultural product or a foodstuff bearing a protected name of origin in that Member State does not meet the criteria of the specification, they shall take the steps necessary to ensure that this Regulation is complied with …’,
this indicates that the designated inspection authority and/or private body in a Member State is that of the Member State from which the PDO comes -- in this case Italy, where Parmesan comes from, or at least ought to come from -- and not Germany itself.

This seems a sensible enough result, the IPKat thinks. If the responsibility for enforcement lay with the German authorities, who chose not to enforce on the basis that, in its opinion, the word 'Parmesan' was either generic or did not infringe the Parmigiano Reggiano PDO, the Italians would have been the first to assert that the right of enforcement lay with themselves and not the German authorities.

Merpel adds: the court observed that
"from the point of view of the Commission, the central question in legal proceedings between private economic operators is that of compliance with the intellectual property rights enjoyed by the producers established in the region of origin of the product concerned, whereas the purpose of action by the public authorities against infringements of Article 13 of Regulation No 2081/92 is not to protect private economic interests but those of consumers, whose expectations as to the quality and geographic origin of that product should not be disappointed. The protection of consumers intended by the regulation would be compromised if the enforcement of the prohibitions laid down by the regulation were completely dependent on the taking of legal action by private economic operators".
She wonders whether the Commission would endorse this argument -- which the court rejected -- in respect of the enforcement of privately owned trade marks. Consumers have expectations that the products they buy are genuine, after all.

More about Parmigiano Reggiano than you may have wanted to know, here
Cooking with Parmesan here and here
Something to avoid: Vegan Parmesan Flavor Grated Soy Topping

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