Opinion of the Advocate General — ECLI:EU:C:1998:614
Date: 1998-12-17
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 Judgment 
1. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — 
National measures for the protection of designations of origiii registered pursuant to Regula­
tion No 2081/92 —Justification 
(EC Treaty, Arts 30 and 36; Council Regulation No 2081/92) 
I -1301 
SUMMARY — CASE C-87/97 
2. Agriculture — Standard laws — Protection of geographical indications and designations of 
origin of agricultural products and foodstuff s — Regulation No 2081/92 — Protection of reg­
istered names — Evocation of a registered name — Meaning — Evocation of the protected 
designation of origin 'Gorgonzola' by the name 'Cambozola' 
(Council Regulation No 2081/92, Art. 13(l)(b)) 
3. Agriculture — Standard laws — Protection of geographical indications and designations of 
origin of agricultural products and foodstuffs — Regulation No 2081/92 — Trade mark reg­
istered before the registration of a designation of origin — Proceedings brought by the trade 
mark proprietor in respect of its use — Requirements — 'Cambozola' registered as a trade 
mark before registration of the designation of origin 'Gorgonzola' — Assessment by the 
national courts — Criteria 
(EC Treaty, Arts 30 and 36; Council ReguUtion No 2081/92, Art. 14(2); Council Directive 
89/104) 
1. In the present state of Community law, 
the principle of the free movement of 
goods does not preclude Member States 
from taking the measures necessary for 
the protection of names registered in accor­
dance with Regulation N o 2081/92 on the 
protection of geographical indications and 
designations of origin for agricultural prod­
ucts and foodstuffs. 
Articles 30 and 36 of the Treaty do not 
preclude the application of rules laid down 
by a bilateral convention between Member 
States on the protection of indications of 
provenance and designations of origin, 
provided that the protected names have 
not become generic in the country of 
origin; a fortiori, they do not preclude 
Member States from taking the measures 
necessary for the protection of names reg­
istered in accordance with Regulation N o 
2081/92. 
2. Article 13(l)(b) of Regulation N o 2081/92 
on the protection of geographical indica­
tions and designations of origin for agri­
cultural products and foodstuffs provides 
that registered names are protected against 
all evocation, even if the true origin of the 
product is indicated. 
The concept of evocation covers a situa­
tion where 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 pro­
tected. It is possible for a protected des­
ignation to be evoked where there is no 
likelihood of confusion between the prod­
ucts concerned and even where no Com­
munity protection extends to the parts of 
that designation which are echoed in the 
term or terms at issue. 
I - 1302 
CONSORZIO PER. LA TUTELA DEL FORMAGGIO GORGONZOLA v KÄSEREI CHAMPIGNON HOFMEISTER AND 
BRACHARZ 
Since the product at issue is a soft blue 
cheese which is not dissimilar in appear­
ance to 'Gorgonzola', it would seem rea­
sonable to conclude that a protected name 
is indeed evoked where the term used to 
designate that product ends in the same 
two syllables and contains the same number 
of syllables, with the result that the pho­
netic and visual similarity between the two 
terms is obvious. Use of a name such as 
'Cambozola' may therefore be deemed, 
for the purposes of Article 13(l)(b) of 
Regulation No 2081/92, to evoke the pro­
tected designation of origin 'Gorgonzola', 
irrespective of the fact that the packaging 
indicates the product's true origin. 
3. Article 14(2) of Regulation N o 2081/92 
provides that, for the continued use of a 
trade mark registered before the registra­
tion of a designation of origin pursuant to 
that Regulation, the trade mark in ques­
tion must have been registered in good 
faith and must not be liable to be declared 
invalid or revoked on the grounds set out 
in the relevant provisions of the First 
Directive 89/104 on trade marks. 
As regards the trade mark 'Cambozola', 
registered before the registration of the 
designation of origin 'Gorgonzola', it is 
for the national court to decide whether 
the conditions laid down in Article 14(2) 
are satisfied, having regard in particular to 
the law in force at the time of registration 
of the trade mark, in order to determine 
whether such registration could have been 
made in good faith — a concept which 
must be interpreted in the light of all the 
legislation, national and international, 
applicable at the time when the applica­
tion for registration of the trade mark was 
lodged — on the basis that use of a name 
such as 'Cambozola' docs not per se con­
stitute an attempt to deceive the consumer. 
I - 1303