Opinion of the Advocate General — ECLI:EU:C:2007:388
Date: 2007-06-28
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;Intellectual, industrial and commercial property;Consumer protection
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Germany

Summary of the Judgment 1. Agriculture – Uniform legislation – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Regulation No 2081/92 (Council Regulation No 2081/92, Arts 13 and 17; Commission Regulation No 1107/96) 2. Agriculture – Uniform legislation – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Regulation No 2081/92 (Council Regulation No 2081/92, Art. 13(1)(b)) 3. Agriculture – Uniform legislation – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Regulation No 2081/92 (Council Regulation No 2081/92, Art. 3(1)) 4. Acts of the institutions – Regulations – Direct applicability (Art. 249 EC; Council Regulation No 2081/92) 5. Agriculture – Uniform legislation – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Regulation No 2081/92 (Council Regulation No 2081/92, Arts 10 and 13(1)(b)) 1. With regard to a ‘compound’ designation of origin registered pursuant to the simplified procedure provided for under Article 17 of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, the lack of a declaration for that designation in the form of a reference to footnotes contained in the annex to Regulation No 1107/96, demonstrating that, for certain elements of a designation, the protection conferred by Article 13 of Regulation No 2081/92 was not requested, cannot constitute a sufficient basis for determining the scope of that protection. Under the system of protection created by Regulation No 2081/92, questions concerning the protection to be accorded to the various constituent parts of a name, in particular the question whether a generic name or a constituent part protected against the practices referred to in Article 13 of that regulation may be concerned, are matters which fall for determination by the national court on the basis of a detailed analysis of the facts presented before it by the parties concerned. (see paras 28-30) 2. The use of the name ‘Parmesan’ must be regarded as an evocation of the protected designation of origin ‘Parmigiano Reggiano’ in the sense of Article 13(1)(b) of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, which protects registered names against any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated. There is phonetic and visual similarity between the names ‘Parmesan’ and ‘Parmigiano Reggiano’, and that in a situation where the products at issue are hard cheeses, grated or intended to be grated, namely, where they have a similar appearance. In addition, regardless of whether the name ‘Parmesan’ is or is not an exact translation of the protected designation of origin ‘Parmigiano Reggiano’ or of the term ‘Parmigiano’, the conceptual proximity between those two terms emanating from different languages must also be taken into account. That proximity and those phonetic and visual similarities are such as to bring to the mind of the consumer the cheese protected by the protected designation of origin ‘Parmigiano Reggiano’, when he is confronted by a hard cheese, grated or intended to be grated, bearing the name ‘Parmesan’. (see paras 46-49) 3. When assessing the generic character of a name, it is necessary, under Article 3(1) of Regulation 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, to take into account the places of production of the product concerned both inside and outside the Member State which obtained the registration of the name at issue, the consumption of that product and how it is perceived by consumers inside and outside that Member State, the existence of national legislation specifically relating to that product, and the way in which the name has been used in Community law. (see para. 53) 4. The right of individuals to rely on the provisions of a regulation before their national courts cannot release the Member States from their duty to take the national measures which may be needed to ensure its full application. In that regard, a national legal system which provides legal instruments which are designed to ensure the effective protection of the rights which individuals derive from Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, such as those contained in the provisions enabling action to be taken against the unlawful use of protected designations of origin – in particular the provisions of a law against unfair competition and a law on trade marks and other distinctive signs – and which does not restrict the possibility of taking legal action in respect of any conduct capable of affecting the rights derived from a protected designation of origin solely to the legitimate holder of that designation, but which on the contrary opens that possibility to competitors, business associations and consumer organisations, is capable of guaranteeing the protection of interests other than those of the producers of the goods protected by a protected designation of origin, in particular the interests of consumers. (see paras 68-70) 5. There is no obligation on the Member States under Article 10 of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs to take on their own initiative the measures necessary to penalise infringements of Article 13(1)(b) of that regulation, which protects registered names against any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated. It is true that, in order to ensure the effectiveness of the provisions of Regulation No 2081/92, Article 10(1) of that regulation provides that the Member States shall ensure that inspection structures are in place not later than six months after its entry into force. They are therefore obliged to create such structures. Nevertheless, Article 10(4) of that regulation, by providing that ‘if a designated inspection authority and/or private body in a Member State establishes that an agricultural product or a foodstuff bearing a protected name of origin in that Member State does not meet the criteria of the specification, they shall take the steps necessary to ensure that this Regulation is complied with …’, indicates that the designated inspection authority and/or private body in a Member State is that of the Member State from which the protected designation of origin comes. The reference to the ‘producers or processors subject to their control’ in Article 10(3) of that regulation, like the producers’ right of access to the inspection system provided for in Article 10(6), and their obligation under Article 10(7) to bear the costs of the inspections, confirm that Article 10 concerns the obligations of the Member States from which the protected designation of origin comes. That interpretation is reinforced by the provisions of Articles 4(2)(g) in conjunction with Article 5(3) and (4) of Regulation No 2081/92, which require that the application for registration includes the specification, that that application is addressed to the Member State in which the geographical area is located, and that the specification includes ‘details of the inspection structures provided for in Article 10’. It follows that the inspection structures whose task it is to ensure compliance with the protected designation of origin specification are those of the Member State from which the protected designation of origin in question comes. (see paras 72-78)