Opinion of the Advocate General — ECLI:EU:C:2009:289
Date: 2009-05-07
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;Intellectual, industrial and commercial property;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

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, as amended by Regulation No 2796/2000, Arts 3(1) and 13(3)) 2. Approximation of laws – Labelling, presentation and advertising of foodstuffs – Directive 2000/13 (Council Regulation No 2081/92, as amended Regulation No 2796/2000, Art. 3(1) and 13(3); European Parliament and Council Regulation No 2000/13, Art. 2) 1. Articles 3(1) and 13(3) of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Regulation No 2796/2000, must be interpreted as meaning that the designation of a foodstuff containing geographical references, which has been the subject of an application for registration as a protected designation of origin or a protected geographical indication within the meaning of Regulation No 2081/92, cannot be regarded as generic pending the possible forwarding of the application for registration to the Commission of the European Communities by the national authorities. A designation cannot be presumed to be generic, within the meaning of Regulation No 2081/92, as amended, for as long as the Commission has not taken a decision on the application for registration of the designation, as the case may be, by rejecting it on the specific ground that that designation has become generic. The way in which the name of a product becomes generic is the result of an objective process, at the end of which that name, although referring to the geographical place where the product in question was originally manufactured or marketed, has become the common name of that product. In those circumstances, the fact that the name at issue in the main proceedings is the subject of an application for registration must, as such, be regarded as irrelevant to the outcome of such an objective process of vulgarisation or of breaking the link between the designation and the territory. (see paras 50-51, 54, operative part 1) 2. Articles 3(1) and 13(3) of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Regulation No 2796/2000, read with Article 2 of Directive 2000/13 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, must be interpreted as meaning that the designation of a foodstuff containing geographical references, which is not registered as a protected designation of origin or a protected geographical indication, may legitimately be used on condition that the labelling of the product so named does not mislead the average reasonably well informed, observant and circumspect consumer. For the purpose of assessing whether that is the case, national courts may have regard to the length of time during which the name has been used. By contrast, any good faith on the part of the manufacturer or retailer is irrelevant in that regard. Among the factors to be taken into account in order to assess whether the labelling at issue may be misleading, the length of time for which a name has been used is an objective factor which might affect the expectations of the reasonable consumer. On the other hand, any good faith on the part of the manufacturer or retailer, which is a subjective factor, cannot affect the objective impression given to the consumer by the use of a geographical name on a label. (see paras 62-63, operative part 2)