‘Tis the season – Champagne sorbet the ghost of Christmas past for Aldi
On 20 December 2017, the Court of Justice of the European Union (ECJ) held that sorbet may be sold under the name “Champagner Sorbet” by Aldi Süd if it has, as an essential characteristic, a taste primarily attributable to champagne. This decision marks the latest instalment in the battle between the Comité Inteprofessionnel du Vin de Champagne (CIVC) and Aldi which has been bubbling away since late 2012.
The CIVC, the association of champagne producers, brought proceedings in Germany against Aldi seeking an injunction to prevent it from selling sorbet marketed and sold under the name “Champagner Sorbet”. The CIVC argued that the name infringes the protected designation of origin (PDO) ‘Champagne’. Relevantly, the sorbet contains 12% champagne. The Bundesgerichsthof (Federal Court of Justice, Germany), referred the case to the European Court of Justice (ECJ) for a determination of the EU’s PDO rules. You can find our article on the ECJ’s non-binding decision here.
The ECJ held that the unlawful exploitation of the reputation of a PDO entails the use of the PDO that seeks to take undue advantage of its reputation. The Court accepted that the use of the name Champagner Sorbet referring to a sorbet containing champagne is liable to attribute that product with the qualities conveyed by the PDO Champagne, including an image of prestige and associated quality.
However, the Court held that use of the name does not take undue advantage and therefore does not exploit the reputation of the PDO Champagne if the product has, as an essential characteristic, a taste that is primarily attributable to champagne.
As the gift that keeps on giving, the ECJ has referred the matter back to the Bundesgerichsthof for final determination. The matters to be determined include, whether on the evidence, the taste of the sorbet is primarily attributable to the inclusion of champagne as an ingredient. The ECJ has observed that the quantity of champagne included as an ingredient is significant but not determinative. Among other things, the ECJ indicated that if the sorbet is held not to have a taste primarily attributable to champagne as an essential characteristic, it is open to the court to find that the use of the name constituted a false or misleading indication which infringes the PDO Champagne.
Whilst others are engaging in festivities and enjoying their favourite tipples, spare a thought for Aldi, who will still be digesting their sorbet well into the new year.