“Parmigiano Reggiano” is an EU-protected geographical indication, but Germany refused to prosecute its cheese producers for using “Parmesan” because it viewed this as a generic permutation. Now the ECJ has pronounced judgment. Omar Bucchioni reports as objectively as he can.
Topic: Food
Who: European Commission, the German Government and the European Court of Justice
When: February 2008
Where: Germany
Law stated as at: 26 February 2008
What happened:
The European Court of Justice (ECJ) has recently delivered a very clear ruling: only cheeses bearing the protected denomination of origin (PDO) ‘Parmigiano-Reggiano’ can be sold under the denomination ‘Parmesan’.
The publication of the judgement of the Court of Justice comes nearly 3 years after the launch of the infringement proceeding by the European Commission against Germany (21st March 2005) following a complaint filed by several economic operators.
In 2003, the European Commission asked the German authorities to give clear instructions to the government bodies responsible for the combating of fraud to bring to an end the marketing on the German territory of products designated as “Parmesan”‘ which did not comply with the specification for the PDO “Parmigiano Reggiano”. According to the Commission, use of the term “Parmesan”, was a translation of the PDO “Parmigiano Reggiano” and its use infringed the PDO.
The German government refused to take action. Its opinion was that while the term “Parmesan” had historical roots in the region of Parma here, 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, according to the German government, did not infringe the 1992 Regulation.
Decision
The 11-judge panel has dismissed infringement proceedings brought by the European Commission against Germany for failing to protect the protected designation of origin (PDO) status of “Parmigiano Reggiano” cheese. The German government wasn’t obliged, under EU law, the Judges said, to prosecute national cheese makers for using the name. The court ruled that it was for Italy, instead, as the country from which the PDO came, to monitor compliance with the specification for the PDO “Parmigiano Reggiano”.
Incidentally, the court rejected Germany’s argument that the term “Parmesan” had become a generic term. Therefore, the unauthorised use of “Parmesan” infringed the PDO “Parmigiano Reggiano”.
The European Court made the following findings:
- Under Regulation 2081/92, registered names are protected against any misuse, imitation or evocation even if the true origin of the product is indicated or if the protected name is translated.
- The protection was not limited to the exact form in which it was registered. With regard to the evocation of a PDO, the term covers a situation where the term used to designate a product incorporates part of a protected designation and it is also possible for a PDO to be evoked where there is no likelihood of confusion between the products concerned.
- “There was a conceptual proximity and phonetic and visual similarities which as such bring to the mind of the consumer the cheese protected by the PDO “Parmigiano Reggiano” when confronted by hard cheese, grated or intended to be grated, bearing the name “Parmesan”. The use of the name “Parmesan” is in these circumstances an evocation of the PDO “Parmigiano Reggiano”. Accordingly, it was not relevant whether or not the name “Parmesan” was a translation of the PDO or not.
On a side line, it is interesting to note that the Commission had accepted that PDOs could become generic (referring to camembert and brie).
In the present case, Germany had simply not proved that the word “Parmesan” had itself become generic.
In reaching this decision, the ECJ took into account the following:
- the places of production of the product concerned
- the consumption of that product and how it is perceived by consumers
- the existence of national legislation specifically relating to that product
- the way in which the name has been used in Community law
Ultimately, whether a constituent part of a PDO could be protected was a matter for the national court to determine on the basis of a detailed analysis of the facts presented to it by the parties concerned. In practical terms, this means that civil action may be brought by authentic Parmigiano Reggiano” producers in the German courts against producers and vendors of imitations.
Why this matters:
This judgment opens the way for the Italian producers to bring proceedings in the German courts. Will this judgment spread across Europe? Undoubtedly the food industry must now be aware that the use of the word “Parmesan” on food labelling may potentially infringe the PDO “Parmigiano Reggiano”.
The producers of “Parmigiano Reggiano” cheese have welcomed the ECJ’s ruling.
However, it can still potentially be open for producers of non-Italian “Parmesan” to argue that the term has become generic.
