Can refugees take their GIs with them when fleeing? The case of Rügenwalder Teewurst

For the past three years, this Ukrainian Kat has been interested in the impact of wars on geographical indications (GIs). She saw, to her surprise, that GIs and wars are intrinsically related, to the point that GIs are featured in peace negotiations, as occurred with the Versailles Treaty.

Louis-Michel, a cat of war.

But what happens when wars are over, and new borders are drawn? How are refugees and internally displaced persons (IDPs, that is, those who moved within their own country) treated from the perspective of GI law? German jurisprudence in the period 1955-1995 provides answers to this legally and morally complicated question.

Rügenwalder Teewurst

Rügenwalder Teewurst (literally “tea sausage from Rügenwalde”) was first made in 1904. This spreadable sausage soon became popular and, by 1920s, it was sold throughout German Reich. According to different sources, between 10 and 15 factories from Rügenwalde were producing this Delicatesse.

In 1927, further to a lawsuit brought by the producers based in Rügenwalde, German courts established that “Rügenwalder Teewurst” was a GI. This was done as part of the then German system, whereby GIs were recognised by courts on the grounds of unfair competition law (and not registered by a public authority, as currently done in the EU). However, under the contemporary German laws, competitors were allowed to sell “Teewurst nach Rügenwalder Art”, tea sausage in the Rügenwalde style.

After World War II, the new border, known as the Oder–Neisse line, granted Poland territories such as southern East Prussia and Eastern Pomerania (where Rügenwalde, now Darłówo, was located). Between 1944 and 1950, Germans that originated from these regions either fled or were expelled by the Allies, primarily to West and East Germany. All sausage producers from Rügenwalde fled to West Germany, with the biggest of them, the Müller family, resuming operations under the brand “Rügenwalder Mühle” (Rügenwalder Mill) in Lower Saxony around 1950.

Rügenwalder Teewurst I (I ZR 86/54)

In 1951, producers from Rügenwalde noticed that one of their competitors, who had previously marketed his products as “in the Rügenwalde style”, switched to merely “Rügenwalder Teewurst”.

Producers from Rügenwalde sued this competitor relying on Sect. 3 of the German Unfair Competition Act that, back then, was the legal ground for the protection of German GIs. After losing in lower instances, the defendant appealed to the Federal Court of Justice (Bundesgerichtshof, BGH). He argued that, due to producers’ resettlement to West Germany, “Rügenwalder Teewurst” had become generic and was no longer eligible for GI protection.

In its 1955 ruling, the BGH supported the producers from Rügenwalde. The BGH traced the fate of all major sausage producers who had operated in Rügenwalde prior to the war: out of the 10 biggest factories, 6 resumed operations in West Germany and acted as plaintiffs in the case, while others either died or did not pursue the Teewurst business.

The court then discussed the Rügenwalder Teewurst’s pre-war reputation of a fine delicacy, as confirmed in the 1927 ruling recognising this product as a GI. According to the BGH, while climate and other peculiarities of the location could have played a role, this reputation was mainly due to the skill and traditional experience of Rügenwalder producers. Building on that, the BGH observed that Rügenwalder Teewurst remained a GI in the public’s perception even after its producers had resettled in West Germany and it had not become generic, despite the defendant’s claims. The BGH relied on three main arguments.

First, as of 1955, West German authorities had not recognised the Oder–Neisse borders between Germany and Poland. According to the court, these territories would be returned and Rügenwalder producers would return home: in the meantime, they should be allowed to preserve their GI rights. Second, the GI had not become generic as its original producers initiated the lawsuit shortly after resuming operations, preventing genericide from happening. Third, the BGH noted that the Rügenwalder producers had lost generations’ worth of work and could only bring along the reputation of their product. The defendant decided to take advantage of the plaintiff’s forced resettlement. Depriving the Rügenwalder producers of their GI rights, noted the court, would be against the values of a fair-minded society.

Thus, only producers originating from Rügenwalde could label their products as “Rügenwalder Teewurst”. Shortly after winning the case, the Rügenwalder producers founded an association and registered “Rügenwalder Teewurst” as a collective word mark.

Rügenwalder Teewurst II (I ZR 197/92)

Forty years after the first ruling, Rügenwalder Teewurst returned to the BGH, with the same parties to the case.

In late 1980s, the 1955 defendant partnered with a butcher who claimed having rights to use the “Rügenwalder Teewurst” naming, albeit through a tangled chain of kinship: when a producer from Rügenwalde died, his widow remarried and adopted a son who later became a butcher. The 1955 defendant and the stepson of the widow of an original producer started selling the “Rügenwalder Teewurst”.

The association of Rügenwalder producers sued the 1955 defendant and the stepson. Plaintiffs claimed this use infringed their trade mark and GI rights. The defendants contested, citing opinion polls, that the GI “Rügenwalder Teewurst” had become generic. In the alternative, they claimed having rights to use the GI, as the stepson was the tradition-bearer, as required for the right to use this GI.

Lower instances sided with the association of Rügenwalder producers. In 1995, the case reached the BGH. The BGH set aside the Hamburg Appeal Court’s (OLG Hamburg) ruling. The BGH found that, in deciding on the generic character and on whether the co-defendant was a tradition-bearer, the OLG should have relied on opinion polls and not on its own assumptions. At the same time, the BGH denied the defendants’ claim that, with the introduction of a pan-EU GI system, only GIs registered under Council Regulation (EEC) No 2081/92 would be valid. In the view of the BGH, the EU GI system coexisted with national protection.

The case returned to the OLG Hamburg, which issued the final ruling in 1999. The opinion polls showed that, for the most part, the consumers no longer knew the story of Rügenwalder refugees and could not locate Rügenwalde. They associated the teewurst with quality and tradition. Defendants tried to rely on this in claiming that the “tradition-bearer” argument was no longer valid and that the collective mark should be open to any sausage producers.

However, the OLG Hamburg found that this argument had no bearing in trade mark law: the association was in its right to limit membership. The defendants’ use infringed the collective mark. According to the court, there was no need to examine the GI-based claims.

Postscript

Whether a group of producers may resettle elsewhere and continue producing a GI-protected product is one of the most contentious issues in GI law. It is behind the so-called “Old World/New World” divide, whereby heavily migrated countries believe that the likes of Roquefort and Champagne can be produced anywhere.

For certain commentators, the 1955 BGH decision to recognise Rügenwalder Teewurst as a GI was driven by political rather than by legal considerations. Yet, this Kat sees that the BGH was also driven by compassion and by understanding that a post-war reconstruction required different approaches. In the end, these solutions were only temporary: in 2023, the Müller family, in its seventh generation of tradition-bearers, sold its business to a non-Rügenwalde company. Luckily for its owners, collective marks allow for a change of membership.

This Kat is extremely grateful to Jasmin and Rebeca for having helped her accessing the relevant judgments.