How can we still in Europe use the term “Champagne” for anything other then sparkling wines from French protected designation of origin?
This question seems relevant in the light of a new decision ruled by the court of Hague on October 8 2010 (Civil section) The case was opposing the Champagne Committee (CIVC) to UNILEVER NEDERLAND B.V Company.
To celebrate the commercial anniversary of one of its shampoo, UNILEVER put a special brand on the market called “Champagne Shampoo”, with a label observing all similarities with a traditional champagne bottle.
The launch of the new product was followed by a series of TV commercials showing people carrying champagne glasses, ads in the press and on billboards with the slogan “Shampoo champagne everyday”.
On August 2nd 2010, CIVC requested UNILEVER to put an end to this campaign which was wrongfully using the famous Protected designation of origin.
After UNILEVER’s absence of reaction, CIVC subpoenaed the firm with an injunction based on the article 118 from the Council Regulation (EC) No 491/2009 of 25 May (Amending the CMO 1234/2007)
This article enforces the protection of wines falling under protected designation of origin from “any direct or indirect commercial use in so far as such use exploits the reputation of a designation of origin”.
In the present case, the use of the term « Champagne » added to the packaging of the « Champagne Shampoo » and the slogan used in the commercials, constitutes a commercial use that obviously benefits from the reputation of Champagne.
The Court of The Hague has heavily condemned UNILEVER:
– To cease immediately the distribution of the litigious product (With a daily penalty payment of 5000 euros)
– A product recall for all the litigious products on the market (apart from those already bought by the consumer) by the means of a letter addressed to the distributors in which UNILEVER confesses to having unlawfully made a use of the protected designation of origin, Champagne.
– To reimburse 25000 euros to CIVC to cover the trial expenses.
The legal precedents set a very high level of protection in European countries for the Champagne, mainly because of its well attested reputation.
By ruling against the indirect commercial use of the reputation of a PDO, the court Of Hague shows that this level of protection has completely been integrated in the new CMO.
Even if the concept of « reputation » of an indication of origin has yet to be defined more precisely, one can reasonably expect that the new CMO will benefit to a wider range of indication of origin, including those which do not necessarily have the same fame has “Champagne”.
It should be noted that UNILEVER surprisingly challenged the fact that GIs could be considered as an intellectual property right. PDO and indication of origins are part of the TRIPs treaty, which has been ratified by the EU (Article 1 paragraph 2 and article 22 and following regarding wines and alcohol)
The CIVC asked a full refund of all the expenses linked to the trial by using the article 14 from the EU directive on the enforcement of intellectual property rights (Directive 2004/48/EC)