The matter at hand
The protection of geographical indications for spirit drinks has been laid down in Spirits RegulationsRegulation [EC] No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation [EEC] No 1576/89, which protects the geographical indications against any misuse, imitation or evocation, even if the true origin of the product is indicated or the geographical indication is used in translation or accompanied by an expression such as “like”, “type”, “style”, “made”, “flavor” or any other similar term.
‘Calvados’ has been registered as a geographical indication in the category of ‘cider spirit and perry spirit’, as originating in France. A Finnish company called Viiniverla Oy, established in the Finnish village of Verla, has manufactured and marketed cider spirits named ‘Verlados’ since 2001.
The French authorities filed a complaint with the EU Commission relating to the alleged misuse of the French geographical indication ‘Calvados’, arguing that ‘Verlados’ constitutes an evocation of the geographical indication ‘Calvados’. In response, the Finnish Authority explained that ‘Verlados’ is a local product the name of which refers directly to Verla (the place of its manufacture) and took the position that there exists no evocation as the names ‘Calvados’ and ‘Verlados’ only have their last syllable in common. The EU Commission, however, considered that the ending ‘ados’ suffices to call the name ‘Calvados’ to mind and informed the Finnish Authority that the name ‘Verlados’ was not authorized. Consequently, the Finnish Authority adopted a decision prohibiting Viiniverla from using the name ‘Verlados’. Viiniverla subsequently brought an action before the Finnish court for annulment of the decision of the Finnish Authority.
In order to rule on the dispute at hand, the Finnish court referred several questions to the ECJ regarding the interpretation of the concept of ‘evocation’. In particular, the referring court wanted to know whether account should be taken of circumstances indicating that the use of the name ‘Verlados’ is not likely to deceive consumers, such as the circumstance that Verlados is sold in Finland only and that it is known to Finnish consumers that ‘Verlados’ refers to the village ‘Verla’ where the product at issue is manufactured.
The judgment of the ECJ
With reference to settled ECJ case law (Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, and Commission v Germany, C‑132/05) the ECJ recalls that “the concept of ‘evocation’ covers a situation in which the term used to designate a product incorporates part of a protected designation, so that when the consumer is confronted with the name of the product the image triggered in his mind is that of the product whose designation is protected” (paragraph 21). Likelihood of confusion is not required: “what matters is, in particular, that there is not created in the mind of the public an association of ideas regarding the origin of the products, and that a trader does not take undue advantage of the reputation of the protected geographical indication” (paragraph 45).
The assessment of whether such evocation exists, must be based on “the presumed expectations of the average consumer who is reasonably well informed and reasonably observant and circumspect” (paragraph 25). Considering that the Regulation protects geographical indications “against any ‘evocation’ throughout the territory of the European Union” and “in the light of the need to guarantee effective and uniform protection of those geographic indications in that territory”, the ECJ considers that this “covers European consumers and not merely consumers of the Member State in which the product giving rise to the evocation of the protected geographical indication is manufactured” (paragraph 27).
Regarding the circumstances mentioned by the referring court, the ECJ rules that none of those circumstances are relevant for the purpose of assessing the existence of an ‘evocation’ (paragraph 41 – 48). The main reason the ECJ gives for this ruling is the desired uniform protection of geographical indications throughout the entire territory of the EU. In addition, the ECJ points out that the circumstances listed by the referring court might prevent confusion or deception on the part of the Finnish consumers, but could still lead to an evocation as described above. Therefore, “where the referring court finds that there is ‘evocation’ (…), it may not authorise the name ‘Verlados’ in the light of the circumstances mentioned in the second question” (paragraph 50).
The ECJ further explains that in order to assess whether an evocation exists, only the visual and phonetic relationship between the names and, where appropriate, their conceptual proximity must be considered, as well as “any evidence that may show that such a relationship is not fortuitous (..)” (i.e. not accidental) (paragraphs 36-49).
In the light of the foregoing considerations, the ECJ concludes that “in order to assess whether the name ‘Verlados’ constitutes an ‘evocation’ within the meaning of that provision of the protected geographical indication ‘Calvados’ with respect to similar products, the referring court must take into consideration the phonetic and visual relationship between those names and any evidence that may show that such a relationship is not fortuitous, so as to ascertain whether, when the average European consumer, reasonably well informed and reasonably observant and circumspect, is confronted with the name of a product, the image triggered in his mind is that of the product whose geographical indication is protected.” (paragraph 48).