The matter at hand
Since 19 March 1999, the name 'Spreewälder Gurken' has been registered as a protected geographical indication (PGI) for ‘fruits, vegetables and cereals’. On 18 February 2012, Spreewaldverein submitted to the German IP Office (DPMA) an application for amendment of the relevant specification, which concerned a change in the production method of those gherkins. Hengstenberg objected to that application and later appealed to the Federal Patent Court of Germany (Bundespatentgericht).
The Bundespatentgericht rejected the appeal on the grounds that Hengstenberg had no 'legitimate interest', as required under Article 53(2), in conjunction with Article 49(3) and (4) of the PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs 2012. The Bundespatentgericht took the view that a distinction should be made between an objection to an application for registration of a protected geographical indication and an application for amendment of the specification of a product with such an indication. The Bundespatentgericht concluded that the only persons likely to be affected by an alleged diminution in the value of a protected geographical indication or a deterioration in the fame or reputation of the product in question following an amendment of the specification in question are the producers established in the geographical area of origin.
In the subsequent appeal before the Bundesgerichtshof (the German Federal Court of Justice), that court considered that the concept of ‘legitimate interest’ within the meaning of Article 49(3) and (4) of the PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs 2012 was not yet defined by in EU law. It therefore raised the question whether the concept of 'legitimate interest' must be interpreted as meaning that, in the procedure for applications for non-minor amendments to the specification of a product with a protected geographical indication, any natural person or legal person who is actually or potentially affected economically by the amendment, has a legitimate interest that is required for an objection or appeal.
The judgment of the ECJ
In its judgment, the ECJ concludes that “any natural or legal person affected economically, actually or potentially […] by the amendments applied for may establish the ‘legitimate interest’ required to lodge an opposition to the application for amendment submitted or to bring an action against the decision granting that application”, in the sense of Article 49(3) and (4) of PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs 2012, in conjunction with Article 53(2) of that regulation (paragraph 53).
The ECJ reached this conclusion on the basis of a host of reasons, including a textual interpretation of the relevant articles (paragraphs 35 and 36), that the objective of a division of power requires the option to appeal to be available widely (paragraphs 37 through 39), and that the objectives pursued by the PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs 2012 require such a conclusion (paragraphs 40 through 46).
Whether there exists a right to lodge an opposition “must be examined on a case-by-case basis, depending on the specific characteristics of each situation”. The ECJ identifies that, “in order to prevent an abuse of that right, such an examination must make it possible to ascertain specifically whether the ‘legitimate interest’ invoked by a natural or legal person is not unlikely or hypothetical” (paragraphs 52 and 53).