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Monday, 21 September 2009

Be circumspect about your salami

Back in May, as readers of this weblog will surely remember, Advocate General Eleanor Sharpston QC gave her Opinion to the Court of Justice of the European Communities in Case C‑446/07 Alberto Severi, in his own name and representing Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA v Regione Emilia-Romagna, a reference for a preliminary ruling from the Tribunale Civile di Modena, Italy. Well, earlier this month -- on 10 September -- the Court gave its ruling here.


Right: Salame Felino, straight from the Museo del Cibo website

To recap: Felino is a small town in the Emilia-Romagna region of Italy. Cavazzuti (now Grandi Salumifici Italiani SpA -- GSI for short) makes local salami sausages which it sells as ‘Salame Felino’ and/or ‘Salame tipo Felino’ [Feline salami? Salami fit for a Kat?]. Since 1970 it made this salami around 50 km down the road in nearby Modena. In May 2006 the region of Emilia-Romagna imposed an administrative penalty on GSI for using the name ‘Salame tipo Felino’ on its labelling in a way that was misleading to consumers. The region took the view that GSI infringed Article 2 of Legislative Decree 109/92, which transposed Article 2 of Directive 2000/13 into national law in Italy [essentially: thou shalt not mislead consumers by mislabelling goods]. At the operative time, the term ‘Salame Felino’ was neither registered as a Protected Designation of Origin (PDO) nor as a Protected Geographical Indication (PGI). An application had however been made to protect ‘Salame Felino’ as a PGI.

GSI applied to the Tribunale Civile di Modena to have the administrative penalty overturned on the grounds that ‘Salame Felino’ was generic and had been used for a number of years and in good faith outside the municipality of Felino, including in respect of a collective trade mark. The Tribunale Civile stayed the proceedings and referred the following questions to the Court of Justice:
‘1. Must Articles 3(1) and 13(3) of Regulation ... 2081/92 (now Articles 3(1) and 13(2) of Regulation ... 510/06), read with Article 2 of Legislative Decree 109/92 (Article 2 of Directive 2000/13/EC), be interpreted as meaning that the name of a food product containing geographical references, for which, at national level, the submission of an application to the Commission for registration as a protected designation of origin (PDO) or a protected geographical indication (PGI) within the meaning of those regulations has been “rejected” or blocked, must be considered generic at least throughout the period for which such “rejection” or blocking remains effective?

2. Must [the same provisions] be interpreted as meaning that the name of a food product which is evocative of a place, but not registered as a PDO or PGI within the meaning of those regulations, may be legitimately used in the European market by producers who have used it in good faith and uninterruptedly for a considerable period before the entry into force of Regulation ... 2081/92 (now Regulation ... 510/06) and in the period following the entry into force of that regulation?

3. Must Article 15(2) of the First Council Directive 89/104 ... to approximate the laws of the Member States relating to trade marks be interpreted as meaning that the proprietor of a collective mark for a food product containing a geographical reference is not allowed to prevent producers of a product having the same characteristics from using to describe it a name similar to that contained in the collective mark, where those producers have used that name in good faith and uninterruptedly over a period of time considerably pre-dating the registration of that collective mark?’
Now we have our answer. Said the Court, in its inimitable fashion:
"1. Articles 3(1) and 13(3) ... must be interpreted as meaning that the designation of a foodstuff containing geographical references, which has been the subject of an application for registration as a protected designation of origin or a protected geographical indication within the meaning of Regulation No 2081/92, as amended by Regulation No 2796/2000, cannot be regarded as generic pending the possible forwarding of the application for registration to the Commission of the European Communities by the national authorities. A designation cannot be presumed to be generic, within the meaning of Regulation No 2081/92, as amended ..., for as long as the Commission has not taken a decision on the application for registration of the designation, as the case may be, by rejecting it on the specific ground that that designation has become generic.

2. Articles 3(1) and 13(3) ... must be interpreted as meaning that the designation of a foodstuff containing geographical references, which is not registered as a protected designation of origin or a protected geographical indication, may legitimately be used, on condition that the labelling of the product so named does not mislead the average reasonably well informed, observant and circumspect consumer. For the purpose of assessing whether that is the case, national courts may have regard to the length of time during which the name has been used. By contrast, any good faith on the part of the manufacturer or retailer is irrelevant in that regard".
The Court agreed with AG Sharpston that the third question was inadmissable: at para. 68 it said:
"... the question whether the proprietor of a collective trade mark relating to a foodstuff and containing a geographical reference identical to the designation at issue in the main proceedings may oppose the use of that designation is manifestly irrelevant to the resolution of the dispute in the main proceedings and must for that reason be declared inadmissible".
The result, the IPKat considers, is quite cheerful for purveyors of the contentious sausage. While the Salame Felino cannot be deemed generic, or indeed anything else, until the Commission have sniffed it and passed judgment, Severi and his merry men can carry on selling it so long as "the average reasonably well informed, observant and circumspect consumer" is not misled by its appellation ['Misled' here is an interesting concept, says Merpel. Most local Italians won't be misled because they are circumspect about their salamis; most non-locals aren't materially misled unless they assume that salami from Felino and Modena respectively are different entities].

Salame Felino here; Felino here; Fellini here; Fellaini here. Confused yet?

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