Unnoticed by most, an EU measure “on the common organisation of the market in wine” has passed into law and will mean that come what may, 1 August 2009 will see “Olympic” style controls over use of wine type names such as champagne. Nick Johnson uncorks the tidings.
Who: European Commission
When: 1 August 2009
Law stated as at: 22 December 2008
On 29 April 2008, EC Regulation No. 479/2008 on the common organisation of the market in wine passed into law, variously amending and repealing existing EC legislation relating to wine.
Article 45(2) is due to come into force on 1 August 2009 and states:
"2. Protected designations of origins and geographical indications and the wines using those protected names in conformity with the product specification shall be protected against:
(a) any direct or indirect commercial use of a protected name:
(i) by comparable products not complying with the product specification of the protected name; or
(ii) in so far as such use exploits the reputation of a designation of origin or a geographical indication;
(b) any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar;
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the wine product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;
(d) any other practice liable to mislead the consumer as to the true origin of the product."
Note that article 45(2)(a)(ii) purports to give protected designations of origin (PDOs) such as "Champagne" and "Port" protection against "any direct or indirect commercial use" of those names which exploits their reputation.
Why this matters:
This appears to go much further than previous EC legislation, which gave wine PDOs and protected geographical indications (PGIs) protection against exploitation in the context of other beverage products.
On the face of it, the new legislation extends that protection to use of PDOs/PGIs in relation to any category of product or service. Further it applies to any commercial use that exploits the reputation of the PDO/PGI. There is no carve-out, as with trade mark law, for uses that are in accordance with honest practices in industrial or commercial matters.
This means that use of protected wine names in advertising for any kind of product will become significantly more risky once this new law comes into force. The word "Champagne" in particular, as a creative short-hand for quality and/or an affluent, aspirational lifestyle, is likely to be a key risk. For instance, the following kinds of usage could potentially lead to threats of injunction applications under the new Regulations:
– CHAMPAGNE FOR YOUR ENGINE (used in relation to petrol)
– WIN A MILLION IN OUR COMPETITION AND ENJOY A CHAMPAGNE LIFESTYLE
Even indirect references, eg to "Bubbly", could potentially be caught under the "evocation" provisions in Article 45(2)(b).
So does the new legislation give those who represent the interests of certain wine producers an unlimited monopoly in Europe over commercial use of their PDOs/PGIs? Arguably not, for two reasons:
1. European convention argument
First, any EC legislation has to be interpreted and applied consistently with the European Convention on Human Rights, which provides for protection for freedom of expression. Case law has confirmed that this applies not just to rights of individual expression but also to commercial free speech. So the Convention may potentially place some limits on the scope of Article 45(2), or may at least be a relevant factor in any interim injunction proceedings.
2. Eiusdem generis argument
Secondly, it may be arguable that the eiusdem generis rule of interpretation should be applied when reading Article 45(2). As sub-clauses (c) and (d) refer to "any other" false or misleading indication or misleading practice, it could potentially be argued that an exploitative use is only intended to give rise to a cause of action under sub-clause (a) or (b) if it is false or misleading in its nature.
One can certainly see these kinds of argument being viewed sympathetically by a UK judge if there were a challenge for instance to an off-licence chain running a "15% off Champagne this week" promotion. (This kind of promotional message is clearly a commercial use and it seems strongly arguable that it exploits the reputation of Champagne.) However it is perhaps less clear how the European Court of Justice would interpret the Regulation in relation to something like "CHAMPAGNE FOR YOUR ENGINE".
The Comité Interprofessionel du Vin de Champagne, which represents the interests of Champagne producers, has been pretty active in seeking to protect the CHAMPAGNE designation to date. So until we have case law guidance as to the interpretation of Article 45(2), advertisers and agencies wishing to avoid legal correspondence may want to steer clear of references to the bubbly stuff in copy used from 1 August 2009 onwards.