Opinion of the Advocate General — ECLI:EU:C:2009:52
Date: 2009-02-05
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Consumer protection;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the different academic positions. 53 – A Community system was introduced with Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and, in parallel, national bodies of legislation were harmonised by means of First Directive 89/104, referred to above. 54 – The judgment refers to the second subparagraph of Article 5(5) of Regulation No 2081/92, in force at the time, the import of which has been reproduced in Article 5(6) of Regulation No 510/2006. 55 – According to López Escudero, M., Regulation No 2081/92 created ‘an internal market in geographical designations … protection for names which is effective throughout the Community and has proven much more favourable for producers than the protection conferred by the national provisions … By means of Regulation No 2081/92 the EC has set up a system of special protection for geographical designations, seeking to reduce the problems caused to intra-Community trade by disparities between the existing national systems’, systems which must be understood to have been eliminated (López Escudero, M., ‘Parmigiano, feta, epoisse y otros manjares en Luxemburgo – Las denominaciones geográficas ante el TJCE’, Une communauté de droit, Festschrift für Gil Carlos Rodríguez Iglesias, BWV 2003, pp. 410 and 419). 56 – Commission Proposal, SEC (90) 2415 (OJ 1990 C 30). 57 – OJ C 269/63. 58 – Consorzio per la tutela del formaggio Gorgonzola, paragraph 18. 59 – Joined Cases C‑129/97 and C‑130/97 Chiciak and Fol [1998] ECR I‑3315. 60 – Surprisingly, the Commission too cites that article in its written observations, stating that the regulation precludes the protection in question being extended to the territory of another Member State ‘without prejudice to Article 307 EC’. Questioned on that point at the hearing, it replied that the phrase was introduced to provide an exception to cover any situations in which a Member State is bound to uphold treaties with non-member States which predate its accession. Which is what occurs with the non-member States who are parties to the Lisbon Agreement. 61 – Case 235/87 [1988] ECR 5589, paragraph 21. 62 – The defendant in the main proceedings denies any such possibility. In any event, the fact, also claimed by Ammersin, that the name ‘Bud’ already enjoyed protection before accession is irrelevant to that issue.