The matter at hand

Consorzio Tutela Aceto Balsamico di Modena (‘the Consorzio’) is a consortium of producers of products designated by the PGI ‘Aceto Balsamico di Modena (PGI)’.

Balema produces and markets vinegar-based products made from wines from the Baden region (Germany), which it has been selling for at least 25 years. The labels of those products bear the terms ‘Balsamico’ and ‘Deutscher balsamico’, among many other terms.

The Consorzio, taking the view that the use by Balema of the term ‘Balsamico’ infringed the PGI, sent it a letter of formal notice, after which Balema brought an action in the German courts seeking a negative declaration of its obligation to refrain from using that term for vinegar-based products produced in German. The action was dismissed at first instance, but was upheld in appeal on the grounds, in particular, that the protection granted to the PGI was conferred only on the entire name ‘Aceto Balsamico di Modena’.

In the appeal against this decision, the Bundesgerichtshof (Federal Court of Justice, Germany) considered that the success of that action depended on whether the protection granted for the PGI ‘Aceto Balsamico di Modena’ covers only that entire name or extends to the use of the individual non-geographical terms thereof, and referred this question to the ECJ.

The judgment of the ECJ

The ECJ rules that it is apparent from the specific circumstances of the registration, by Regulation No 583/2009, of the name ‘Aceto Balsamico di Modena’ that the protection conferred on that name cannot extend to the individual non-geographical terms of that name. The ECJ refers to recital 8 thereof, stating that it is the name ‘Aceto Balsamico di Modena’ that has a reputation, from which it follows that it is that compound name as a whole which meets the inherent condition for the product having a reputation. The ECJ also refers to recital 10, which states that protection is granted to the term ‘Aceto Balsamico di Modena’ as a whole and that ‘individual non-geographical components of that term may be used, even jointly and also in translation, throughout the [European Union], provided the principles and rules applicable in the [European Union]’s legal order are respected’.

The ECJ concludes that it thus follows unequivocally from the recitals of Regulation No 583/2009 that the non-geographical terms of the PGI at issue, namely ‘aceto’ and ‘balsamico’, and their use in combination and in translation, cannot benefit from the protection for the PGI ‘Aceto Balsamico di Modena’ ensured by the PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs.