Opinion of the Advocate General — ECLI:EU:C:2021:350
Date: 2021-04-29
Language of the case: Spanish
Subject matter: Agriculture and Fisheries;Consumer protection
Procedure: Reference for a preliminary ruling
Origin: Spain

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Translation C-783/19 — 1 
Case C-783/19 
Request for a preliminary ruling 
Date lodged: 
22 October 2019 
Referring court: 
Audiencia Provincial de Barcelona (Spain) 
Date of the decision to refer: 
4 October 2019 
Appellant: 
Comité Interprofessionnel du Vin de Champagne 
Respondent: 
GB 
  
Civil Division No 15 of the Audiencia Provincial de Barcelona (Provincial 
Court, Barcelona, Spain).  
[…] Appeal […] 
Matter: Ordinary proceedings 
Originating court: Juzgado de lo Mercantil No 6 de Barcelona (Commercial 
Court No 6, Barcelona, Spain) 
Originating proceedings: Ordinary proceedings […] 
Appellant […]: COMITÉ INTERPROFESSIONAL DU VIN DE CHAMPAGNE 
[…] 
Respondent: GB 
EN 
REQUEST FOR A PRELIMINARY RULING OF  4. 10. 2019 — CASE C-783/19 
 
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[…] [In the a]ppeal […] before this court which was brought by COMITE 
INTERPROFESSIONAL DU VIN DE CHAMPAGNE against GB, in connection 
with ordinary proceedings, a […] FINAL decision has been given, which is 
worded as follows: 
ORDER 
[…] [details of the court] 
Barcelona, 4 October 2019. 
Appellant: Comité Interprofessionnel du Vin de Champagne. 
Respondent: GB. 
Decision under appeal: Judgment. 
Date: 13 July 2018. 
Applicant: Comité Interprofessionnel du Vin de Champagne. 
Defendant: GB. 
FACTS 
1. This division of the Audiencia Provincial de Barcelona (Provincial Court, 
Barcelona) […] is seised of an appeal […] brought by the Comité 
Interprofessionnel du Vin de Champagne against the judgment given by the 
[OR 2] Juzgado Mercantil 6 de Barcelona (Commercial Court No 6, Barcelona) 
on 13 July 2018. 
2. The proceedings and the appeal concern the determination of the scope of 
protection of the designation of origin Champagne against the use by GB of the 
business name and logo ‘Champanillo’ to identify, in the course of trade, business 
premises used for catering activities. 
3. […] [t]his court has a number of questions concerning the scope of the 
Community regulations on designations of origin, specifically, the protection of 
origin of wine products; these are questions which can be the subject of a 
reference for a preliminary ruling to the Court of Justice of the European Union 
under Article 267 of the Treaty on the Functioning of the European Union. 
4. Prior to submission of the reference for a preliminary ruling, the parties were 
invited to make any submissions they considered appropriate […]. 
LAW […] 
COMITÉ INTERPROFESSIONNEL DU VIN DE CHAMPAGNE 
 
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FIRST.- Subject matter of the proceedings. 
The Comité Interprofessionnel du Vin de Champagne (CIVC) brought intellectual 
property proceedings against GB under the ordinary procedure. In particular, the 
CIVC sought the following rulings: 
‘A DECLARATION that: 
1) The use made by the defendant of the CHAMPANILLO logo on the market 
[…] infringes the designation of[…]origin Champagne. 
2) The registration and use of the domain name “champanillo.es” and the use 
of the CHAMPANILLO logo on the defendant’s accounts with the social networks 
Facebook and Twitter infringe the designation of origin Champagne. 
3) As a consequence of the above ruling, the domain name “champanillo.es” 
and the online social network accounts on which the CHAMPANILLO logo 
appears must be cancelled. 
[OR 3] THE DEFENDANT IS ORDERED: 
a) To abide by the above declarations. 
b) To cease use of the CHAMPANILLO logo. 
c) To remove from the market any instrument, sign, poster, notice, promotional 
or commercial document, including on the internet, on which that logo appears. 
An ORDER is made for: 
a) Cancellation of the domain name “champanillo.es” by sending the 
appropriate official communication to the entity Red.es. 
b) Removal of the accounts identified by the CHAMPANILLO logo on 
Facebook and Twitter by sending the appropriate official communication. 
-The costs are to be borne by the defendant.’ 
2. The defendant contested the proceedings […] submitting it was using the term 
‘Champanillo’ or ‘el Champanillo’ as the business name of a catering industry 
establishment (a tapas bar), without any likelihood of confusion with the products 
protected by the designation of origin Champagne and without any exploitation of 
the reputation of that designation of origin. 
3. After the relevant procedural steps, the court gave judgment dismissing the forms 
of order sought by the applicant. The judgment states that[:] 
‘In this case, after conducting a balanced assessment of the conflicting signs, this 
court finds that any evocation of the name “Champagne” that may arise as a 
REQUEST FOR A PRELIMINARY RULING OF  4. 10. 2019 — CASE C-783/19 
 
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result of the defendant’s use of the sign “Champanillo”[…] in the business 
premises that it operates and on social networks is tenuous and irrelevant […] for 
the purposes of infringement of […] Article 118m(2) of Regulation (EC) 
No 1234/2007. 
Not all types of evocation can be the basis of an infringement and instead the 
infringement must be linked to the protection afforded to designations of origin. 
The product to which the sign “Champanillo” is applied, which is not a wine or 
an alcoholic beverage but rather the name of a […]tapas [b]ar or a restaurant, 
where there is no evidence that “champagne” is sold, and the public at whom that 
product is targeted, differ to such an extent as regards the products protected by 
the name “Champagne”, a renowned trade mark with a very good reputation in 
the wine and restaurant sectors, that the phonetic similarity of the signs does not 
lead to evocation.’ 
The […] judgment at first instance refers to the case-law of the First Chamber of 
the Spanish Tribunal Supremo (Supreme Court, Spain), […] judgment of 1 March 
2016 (ECLI:ES:TS:2016:771), which concerned the trade mark Champín, used 
[OR 4] to market a non-alcoholic fizzy fruit drink consumed at children’s parties. 
The Tribunal Supremo (Supreme Court) found that the trade mark Champín did 
not infringe the D.O. Champagne because the product to which the term Champin 
applied and those targeted by that product differed from the products covered by 
the name Champagne and those at whom it was targeted. Accordingly, the 
Tribunal Supremo (Supreme Court) held that the phonetic similarity did not lead 
to evocation. 
4. Champagne (the applicant in the main proceedings) appealed against the 
judgment. 
5. This court proceeds on the basis of the following facts: 
1) The Comité Interprofessionnel du Vin de Champagne (C.I.V.C.) is an entity 
recognised under French law which is responsible for safeguarding the interests of 
Champagne producers and for the legal protection of the designation of origin 
Champagne worldwide. 
2) As provided for in the French Law of 12 April 1941, C.I.V.C. is a semi-
governmental organisation with legal personality and legal standing to bring 
actions […] before the courts to protect the name Champagne. 
3) The designation of origin ‘Champagne’ is currently protected by French 
Decree No 2010-1441 of 22 November 2010, which is applicable in Spain 
pursuant to the terms of the Convention between the French Republic and the 
Spanish State on the protection of designations of origin, indications of 
provenance and names of certain products, and the protocol thereto of 27 June 
1973. 
COMITÉ INTERPROFESSIONNEL DU VIN DE CHAMPAGNE 
 
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4) The designation of origin ‘Champagne’ is also protected internationally 
through registration with the World Intellectual Property Organization (documents 
3 to 8 of the application). 
5) The designation of origin ‘Champagne’ enjoys global recognition and 
renown (documents 9 to 16). 
6) GB uses the logo ‘CHAMPANILLO’ to identify tapas bars situated in 
Barcelona, Mollet del Vallés, Calella and Cardedeu (documents 17 to 19). 
7) The defendant attempted on two successive occasions to register […] the 
logo ‘Champanillo’[…] as a trade mark at the Oficina Española de Patentes y 
Marcas (OEPM; Spanish Patent and Trade Mark Office) and on both occasions, 
following opposition by the applicant, registration was refused, by decisions dated 
8 February 2011 and 14 April 2015, on the grounds that the logo was 
incompatible with the designation of origin ‘Champagne’. [OR 5] 
8) Mr GB also uses the term ‘Champanillo’ to publicise his restaurant 
businesses (drinks and tapas) on social networks and traditional advertising media 
(cards, flyers and posters). That use is also contested. 
9) The applicant has established by means of documentary evidence that, until 
2015, Mr GB sold a sparkling beverage called ‘Champanillo’ on his premises and 
that he ceased the sale of that sparkling wine when required to do so by the 
applicant. 
10) Furthermore, the promotional material for his businesses uses as a graphic 
medium photographs of two glasses containing a sparkling beverage. 
 
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SECOND.- Legal framework in which the questions have arisen. 
6. In general terms, the question at issue in the appeal relates to whether the owner of 
a catering industry business is entitled to use a name which could evoke a 
protected designation of origin for a product. 
7. The legislation on the protection of designations of origin refers to products, 
whereas the person who uses the term evoking the designation of origin carries on 
a service activity. 
The legislative framework within which the appeal must be resolved is defined, 
essentially, by Article 13 of Council Regulation […] [(EC) No] 510/2006 of 
20 March 2006 on the protection of geographical indications and designations of 
origin for agricultural products and foodstuffs. 
It is also defined by Regulation […] [(EU) No ]1308/2013 of the European 
Parliament and of the Council of 17 December 2013 establishing a common 
organisation of the markets in agricultural products. Article 103 of that regulation 
refers specifically to the protection of designations of origin linked to wine 
products. 
[Article 103](2)(b) [OR 6] of that regulation is reproduced in so far as it refers not 
only to products but also to products involving services: 
‘2. A protected designation of origin and a protected geographical indication, 
as well as the wine using that protected name in conformity with the product 
specifications, shall be protected against: 
b) any misuse, imitation or evocation, even if the true origin of the product or 
service is indicated or if the protected name is translated, transcripted or 
transliterated or accompanied by an expression such as “style”, “type”, 
“method”, “as produced in”, “imitation”, “flavour”, “like” or similar.’ 
Those provisions should be integrated with Article 1.643-1 of the French Rural 
Code, applicable in Spain pursuant to the Convention between the French 
Republic and the Spanish State on the protection of designations of origin, 
indications of provenance and names of certain products (Protocol of 27 June 
1973). 
8. On the basis of that legislative framework, and subject always to the possibility of 
applying other complementary provisions, this court has uncertainties relating to 
the scope and interpretation of that Community legislation; those uncertainties 
concern, in general, the following questions regarding the limits of protection of 
designations of origin as a system equivalent to that applicable to the protection of 
other intellectual property rights. 
1) Does the scope of protection of […] a designation of origin make it possible 
to protect that designation of origin not only as against similar products but also as 
COMITÉ INTERPROFESSIONNEL DU VIN DE CHAMPAGNE 
 
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against any services which may be associated with the direct or indirect 
distribution of those products? 
2) Does the risk of infringement by evocation, to which the articles in question 
of the Community regulations refer, necessitate in the first instance a nominal 
analysis […] to determine the effect that this has on the average consumer, or 
[…], in order to examine that risk of infringement by evocation[,] is it necessary 
to establish first of all that the products at issue are the same or similar or are 
complex products whose components include a product protected by a designation 
of origin? 
3) Must the risk of infringement by evocation be defined using objective 
criteria when the names are exactly the same or highly similar or must that risk be 
calibrated by reference to the products and services which evoke and are evoked 
in order to conclude that the risk of evocation is tenuous or irrelevant? 
4) In cases where there is a risk of evocation or exploitation, is the protection 
provided for in the legislation referred to specific protection related to the special 
features of the products concerned or must the protection be connected to the 
provisions on unfair competition? 
9. Those questions arise in relation to consideration of the appeal and the 
determination of [OR 7] the scope and interpretation of the cases of infringement 
of a designation of origin by exploitation of the reputation of that designation 
where the hypothetical infringer operates a service. 
10. […][supplementary questions suggested by the applicant which were not taken 
into account] 
THIRD. Relevance of the reference for a preliminary ruling. 
11. Under Article 267 of the Treaty on the Functioning of the European Union and the 
case-law which interprets it, if a national court takes the view that a Community 
provision is applicable to a case and there is no interpretation of that provision and 
the provision could raise doubts as to its compatibility with other national 
provisions or with national case-law, it has the option of making a reference for a 
preliminary ruling even if it is not the national court of last instance. National 
courts have a broad discretion to submit a question to the Court of Justice if they 
consider that a case before them raises issues which concern the interpretation of 
provisions of Community law which necessitate a decision by them. 
12. In the present case, those questions of interpretation arise in relation to the EU 
regulations cited […] Council Regulation (EC) […] No 510/2006 of 20 March 
2006 on the protection of geographical indications and designations of origin for 
agricultural products and foodstuffs, and […] Regulation (EU) […] No 1308/2013 
of the European Parliament and of the Council of 17 December 2013 establishing 
a common organisation of the markets in agricultural products […]. 
REQUEST FOR A PRELIMINARY RULING OF  4. 10. 2019 — CASE C-783/19 
 
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13. Having thus defined the terms of the dispute, this court considers it necessary to 
make a reference for a preliminary ruling as provided for in Article 267 TFEU so 
that the Court of Justice of the European Union can answer the following 
questions. 
OPERATIVE PART 
[OR 8] On those grounds, this court decides to refer to the Court of Justice the 
following questions relating to the interpretation of Article 13 of Council 
Regulation (EC) […] No 510/2006 of 20 March 2006 on the protection of 
geographical indications and designations of origin for agricultural products and 
foodstuffs, and Article 103 of Regulation […] [(EU) No] 1308/2013 of the 
European Parliament and of the Council of 17 December 2013 establishing a 
common organisation of the markets in agricultural products. 
1) Does the scope of protection of […] a designation of origin make it possible 
to protect that designation of origin not only as against similar products but also as 
against any services which may be associated with the direct or indirect 
distribution of those products? 
2) Does the risk of infringement by evocation, to which the articles in question 
of the Community regulations refer, necessitate in the first instance a nominal 
analysis[,] to determine the effect that this has on the average consumer, or, in 
order to examine that risk of infringement by evocation[,] is it necessary to 
establish first of all that the products at issue are the same or similar or are 
complex products whose components include a product protected by a designation 
of origin? 
3) Must the risk of infringement by evocation be defined using objective 
criteria when the names are exactly the same or highly similar or must that risk be 
calibrated by reference to the products and services which evoke and are evoked 
in order to conclude that the risk of evocation is tenuous or irrelevant? 
4) In cases where there is a risk of evocation or exploitation, is the protection 
provided for in the legislation referred to specific protection related to the special 
features of the products concerned or must the protection be connected to the 
provisions on unfair competition? 
[…] [Procedural considerations] […] This decision is final and no appeal lies 
against it. 
[OR 9] […]. 
Barcelona, 10 October 2019. 
[…]