Geography Reference
In-Depth Information
production and to a place of production - the territory of the commune of
Felino, in Emilia Romagna, in the province of Parma - which did not
correspond to the defendants foodstuffs which were produced in the province of
Modena.
An administrative penalty of EUR 3108.33 was imposed upon the defendant
for infringement of Art 2 of Legislative Decree No 109/92. Mr Severi chal-
lenged the penalty of 16 May 2006 before the Tribunale civile di Modena (Civil
Court, Modena) on the basis that until 'Salame Felino' was registered as a PDO,
it remained generic and available for use 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 No 2081/92 (now Regulation No 510/
2006) and in the period following the entry into force of that regulation. This
was put as a question by the Modena Court to the ECJ. The ECJ rejected a
presumption of genericity arising from the fact that a PDO had not yet been
registered.
74
6.49
The defendant also argued that the qualification 'tipo' (type) prevented the
deception of consumers. The ECJ ruled that the question of whether consumers
were misled was a matter for national courts, but that it was clear from the
Court's case law that, in order to assess the capacity to mislead of a description
to be found on a label, the national court must in essence take account of the
presumed expectations, in light of that description, of an average consumer who
is reasonably well informed, and reasonably observant and circumspect, as to
the origin, provenance, and quality associated with the foodstuff, the critical
point being that the consumer must not be misled and must not be induced to
believe, incorrectly, that the product has an origin, provenance or quality which
are other than genuine.
75
For the purpose of assessing whether labelling might
be misleading, the ECJ ruled that national courts may have regard to the length
of time during which the name has been used and that any good faith on the
part of the manufacturer or retailer is irrelevant in that regard.
76
6.50
5. Absolute bars to registration of geographical marks
Both the Community Trade Marks Regulation and the Trade Marks Directive
list the grounds for refusal of registration or invalidity of signs which cannot
6.51
74
[2009] EUECJ C-446/07 at para 49.
75
Ibid, at para 61 applying: Case C-470/93,
Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Mars GmbH
[1995] ECR I-1923, at para 24;
Gut Springenheide and Tusky v Oberkreisdirektor des Kreises Steinfurt-Amt für
Lebensmittelüberwachung
[1998] ECR I-4657, at para 31; and Case C-220/98 Estée
Lauder Cosmetics GmbH &
Co OHG v Lancaster Group GmbH
[2000] ECR I-117 at para 30.
76
Ibid, at para 63.
