On 17 September, the Court of Justice of the European Union (CJEU) Advocate General Pitruzzella delivered his opinion on Case C 490/19, opposing the “Syndicat interprofessionnel de défense du fromage Morbier” and the French company “Fromagère du Livradois”. The case – referred to the CJEU in 2019 by the French “Cour de cassation” – concerns the interpretation of article 13.1 of Regulation 1151/2012 and its depth with respect to the reproduction by third parties of shapes and physical appearances of products bearing protected names. The “Syndicat interprofessionnel de défense du fromage Morbier” had seized the “Cour de cassation” contesting the use and commercialization by the French company “of a cheese product reproducing the visual appearance of the PDO “Morbier”. Pitruzzella concluded that “… reproducing the shape or appearance of a product covered by a registered name may constitute a prohibited practice under Article 13(1)(d) of Regulations No 510/2006 and No 1151/2012 if it is liable to mislead the consumer as to the true origin of the product. It is for the national court to assess, in each individual case, whether such a practice is illegal in the light of all the relevant elements and referring to the perception of the average European consumer who is reasonably well informed and reasonably observant and circumspect”. Read the conclusions’ full text
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Earlier this year, in May 11, the Second Board of Appeal of the EUIPO has rendered its decision (R 2028/2019-2) concerning the appeal relating to the European Union trade mark application No 17 257 981, filed on 27 September 2017, concerning the word mark “PORT RUIGHE” in Class 33 (Whisky and whisky based alcohol beverages). On 2 January 2018, the “INSTITUTO DOS VINHOS DO DOURO E DO PORTO” had filed an opposition against such request based on the PDO “Porto” and “Port”, protected under Portuguese law concerning the protection of appellations of origin, Article 103(2) of Regulation (EU) No 1308/2013 and Articles 22 and 23 TRIPS Agreement. In 14 August 2019, the EUIPO Opposition Division had rejected the opposition, claiming that the conditions of Article 103(2) of Regulation No 1308/2013 were not fulfilled. Such decision was appealed by the “INSTITUTO DOS VINHOS DO DOURO E DO PORTO”. The Second Board of Appeal concluded that the contested mark makes direct use of the PDO ‘PORTO’ and ‘PORT’. As such name enjoy exceptional reputation for wines, its use for the goods applied for is likely to exploit its reputation within the meaning of Article 103(2)(a)(ii) of Regulation No 1308/2013. As a result, the mark ‘PORT RUIGHE’ had to be refused even though it was applied for a different category of good (whisky in the present case). Read the EUIPO Board of Appeal decision
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