Opinion of the Advocate General — ECLI:EU:C:2002:176
Date: 2002-03-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Wine
Procedure: Reference for a preliminary ruling
Origin: France

summary, in order to assess whether a description or trade mark is misleading, the national court must take into account the presumed expectations of the average consumer who is reasonably well informed, circumspect and observant. When that test is applied to a particular case, account must be taken of the linguistic, cultural and social differences between the Member States, which may mean that a trade mark which does not mislead the consumer in one Member State does so in another Member State. Where it appears particularly difficult to assess whether a description or trade mark is misleading, Community law does not preclude a national court from having recourse, under the conditions laid down by national law, to an opinion poll or expert's report to guide it in forming its judgment. The meaning of the terms confusion and mislead 43. Confusion and mislead are the key terms in Article 40. Paragraph 2 specifies the meanings which confusion or, as the case may be, mislead may have in relation to a brand name. However, paragraph 2 does not apply to the use of a geographical reference in a brand name. For those reasons, guidance must be sought from the Court's case-law on the terms confusion and mislead. In a series of judgments, the Court has given an interpretation of those terms within the meaning of Article 40 and of other articles in which they occur. I have already cited those judgments in point 13 of this Opinion and I shall now examine in greater detail the considerations which are relevant to this case. 44. In order to determine the scope of Article 40, the meaning of the words be ... likely to cause confusion or to mislead for the purposes of Article 40 must first be established. The Court interpreted those terms in the context of Articles 8, 18 and 43 of Regulation No 355/79, the wordings of which are practically the same as that of Article 40, in Weigand. (25) In that case, the Court had to determine whether there was confusion within the meaning of that regulation where a wine merchant used on the label of two wines and in the advertising for those wines descriptions which gave the impression that they came from German wine regions and locations which in fact did not exist. The Court held that the term confusion covered not only confusion in the narrow sense, but also the use of deceptive information. The same meaning was attributed to the words confusion and false impression because the provisions concerned serve the same purpose, namely the prevention in the marketing of wine of all practices which are of such a nature as to create false appearances. This means that the same meaning must likewise be attributed to the terms confusion and mislead for the purposes of Article 40. 45. In Kessler, (26) the question at issue was whether the use of the terms cause confusion and mislead as alternatives in Article 13(1) and Article 13(2)(a), while Article 13(2)(b) is concerned only with the question whether the descriptions in question are liable to be confused, might indicate that, in the first two cases, the prohibition presupposes proof of the risk of persons actually being misled, whereas, in the situation covered by Article 13(2)(b), it is sufficient to find that the descriptions in question are in themselves liable to be confused. 46. The Court held that it is not sufficient for the prohibition laid down by Article 13(2)(b) of Regulation No 2333/92 (27) to be applied to find that a brand name which includes a word appearing in the description of one of the products mentioned in that provision is, as such, likely to be confused with that description. It is also necessary to establish that use of the brand name is in fact likely to mislead the consumers concerned and thus affect their economic behaviour. 47. As I observed in point 31, the Court held in Kessler that by authorising in principle the use of brand names to supplement the description, presentation and advertising of sparkling wines, the Community legislature intended to strike a balance between the interests involved, that is to say, between the right of consumers not to be misled as to the intrinsic qualities of a product, and the legitimate interest of the owners of a brand name to use and exploit it for commercial purposes. The Court took the view that that balance would be seriously undermined if a mere risk of confusion, found to exist without even taking the opinions and habits of the consumers concerned into consideration, were enough to prevent the use of an appellation protected as a brand name. It must therefore be established that the use of a brand name is in fact likely to mislead consumers. 48. It is also clear from the judgment in Langguth (28) that Article 40 is aimed primarily at prohibiting the untruthful use of brand names. The Court held that, accordingly, the fact that a brand name is presented in a conspicuous manner does not mean that it is likely to cause confusion or mislead the persons to whom it is addressed, even if it contains a word that has been designated by the rules in question as information which may be used in the appellation of a quality wine psr. 49. I note that in SABEL (29) the Court interpreted the concept of likelihood of association, which serves to define the scope of the concept of likelihood of confusion. According to that judgment, the likelihood of association implies that, because of the identity or similarity of both the trade marks and the goods or services covered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with an earlier mark. It follows from paragraphs 22 and 23 of that judgment that [t]he likelihood of confusion must ... be appreciated globally, taking into account all factors relevant to the circumstances of the case. That global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. 50. For the sake of completeness I cite Voisine, (30) which concerned the question whether decorations on bottles of wine, which have no connection with the wine itself, are covered by the definition of labelling given in Article 38 of Regulation No 2392/89. Under a French law on fraud and falsification of products it was laid down that it was misleading in certain towns to offer for sale bottles on which photographs were affixed of the towns where the bottles were being sold, together with a text giving the history of the town in question. Such labels were liable to mislead purchasers as to the provenance of the wine. The Court pointed out that the aim of the provisions relating to the labelling of wines is the prevention in the marketing of wine of all practices which are of such a nature as to create false appearances. It is irrelevant whether such practices give rise in the minds of consumers to confusion with existing products or the erroneous impression of an origin or of characteristics which in reality do not exist. 51. I summarise the foregoing case-law on the terms confusion and mislead as follows. The essential point is that use of the brand name should in fact be likely to mislead the consumers concerned and thus affect their economic behaviour. In that sense there must be an actual risk. The term confusion in Article 40 is in itself certainly a wide concept. In addition to confusion in the narrow sense of the term, it also covers the use of deceptive descriptions which are liable to create the impression on the part of the public of an origin or of characteristics which in reality do not exist. In addition, it also covers the likelihood of association. Since the aim of Article 40 is to prevent in the marketing of wine all practices which are of such a nature as to create false appearances, intent is not a requirement. The observations of the French Government and the Commission 52. In the present case, the French Government points out that in Weigand (31) the Court construed the prohibition of misleading information abstractly, that is to say, no proof of actual confusion is required, but a mere abstract risk of confusion is sufficient. The Court qualifies that view in later judgments and requires that there be a real likelihood of confusion or of being misled. In that respect, the Court held in Langguth (32) that the use of a brand name may only be regarded as giving rise to confusion or misleading the persons to whom it is addressed if it is established that, having regard to the views or habits of the consumers concerned, there is a real likelihood of their economic behaviour being affected. 53. The French Government argues, by reference inter alia to the judgments in Weigand and Langguth, that Article 40 prohibits the inclusion of a geographical reference in a brand name, the use of which is not provided for by Article 11, because of the likelihood of confusion of such a brand name with an existing brand name or the likelihood that it will mislead consumers as to the provenance of the wine. 54. The Commission is of the opinion that the inclusion of a geographical reference in a brand name, the use of which is not regulated by a national law or a Community provision, may give the impression that it is protected and result in the consumer being misled. Nevertheless, it does not consider that the mere inclusion of a geographical reference in a brand name is a sufficient basis for concluding that Article 40 has been infringed. According to the Commission, it must also be established that the use of such a brand name is liable to cause confusion or to mislead consumers and thus affect their economic behaviour. It refers in this respect to Kessler. (33) 55. Both the French Government and the Commission take the view that it is for the national court to ascertain whether the inclusion of the geographical reference Aquitaine in the brand name Les Cadets d'Aquitaine is liable to mislead the consumer. It is settled case-law that the national court must take into account in that context the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect. (34) Assessment proper 56. The referring court's question must be answered in the light of the scheme of the regulation. The regulation lays down exhaustive rules as to which particulars are and which are not permitted, but uses for that purpose terms which are not always unambiguous. (35) For those reasons, the national court must always assess in each individual case whether a given particular is permitted under the regulation. The Court previously held that to be so with regard to provisions similar to Article 40 of Regulation No 2392/89 which are intended to prevent the consumer from being misled. I have already noted that in point 41. 57. As I have already stated in point 37, Regulation No 2392/89 does not in itself prohibit the use of the name of a large region as a geographical reference in a brand name. Such a prohibition cannot be inferred either from Articles 11 and 12 or from Article 40 of the regulation. I therefore share the Commission's view that the inclusion of a geographical reference in a brand name, the use of which is not regulated by a national law or by a Community provision, is not contrary to Article 40 solely for that reason. The use of such a reference is permitted, provided that it does not cause confusion or mislead the consumer. I also make that inference from the cases which I have discussed in points 44 et seq. It is clear from those cases that protection of the consumer is the main emphasis of Regulation No 2392/89 as far as information which is liable to cause confusion or mislead is concerned. 58. In the present case, the national court is required to assess whether, having regard to the consumers to whom it is addressed, the name of a large region included as a geographical reference in a brand name is liable to be confused with registered names which occur in the same region. 59. The Court's case-law, as described in points 39 et seq. of this Opinion, gives a number of criteria for assessing whether information is liable to cause confusion or mislead. I refer in this connection in particular to points 42 and 51 of this Opinion. However, those criteria do not specify in what cases the name of a large region is permitted as a geographical reference in a brand name. 60. In order to provide the national court with a further point of reference for its assessment, I shall first examine in more detail the facts in the main proceedings. In the light of those facts, I shall then consider how the criteria formulated by the Court can be made more specific for the purpose of giving judgment in a case such as this. 61. The main proceedings concern the question whether the name Aquitaine is permitted as a geographical reference in the brand name Les Cadets d'Aquitaine. In the terms of the regulation, does such a reference cause confusion or is it misleading as regards the protection of the name? 62. In this case, the appellant in the main proceedings markets wine from the Bergerac district, which is in Aquitaine. I note that, according to the order for reference, it is not disputed that Aquitaine is a geographical name which serves to designate Bergeracois wines. The name Aquitaine thus denotes the region in which the wine is actually produced. 63. It is clear that the name Aquitaine is the central issue in the main proceedings. Aquitaine is a large region in south-west France, which has been known as such for centuries, where a number of renowned, traditional winegrowing areas are to be found. Moreover, Aquitaine is now also one of France's administrative regions. (36) Bordeaux is one of the best-known winegrowing areas in that region. There is no doubt that the name Aquitaine is generally familiar to the French public. By the same token, it does not seem likely that the French public regards Aquitaine as a specific winegrowing area. However, it is questionable to what extent the name of a large French region, in which a number of renowned winegrowing areas are located, may also be assumed to be familiar to foreign consumers. 64. I would add yet a further point. It is possible that the name of a large region included as a geographical reference in a brand name may indeed cause confusion with registered names from that region because of the associations which it holds for the reasonably well-informed consumer. The brand name Les Cadets d'Aquitaine indicates that the wine is from the Aquitaine region. That brand name, unlike registered names from the Aquitaine region, such as, for example, Bordeaux, Médoc and Bergerac, is not regulated by a national law or a Community provision. Since registered names also occur in the Aquitaine region, the brand name Les Cadets d'Aquitaine could give the impression that it too is a registered name. 65. What bearing does all this have on the assessment to be made by the national court? 66. As I have already stated in point 42 of this Opinion, in determining whether a description or trade mark is liable to mislead, it is necessary to take into account the presumed expectations of an average consumer who is reasonably well informed, circumspect and observant. (37) In view of the circumstances of this case, it appears particularly important to take into account the expectations of consumers in other Member States as well. 67. The national court will then need to assess whether the use of the geographical reference in the brand name creates a likelihood of confusion for the consumers referred to above. In making that assessment, the national court may apply certain tests which have been developed in the Court's case-law. (38) The most important one is that the use of the brand name should actually be liable to mislead the consumers concerned and thus affect their economic behaviour. That economic behaviour may be affected by the use of deceptive references which may induce the public to believe that characteristics are present which in reality do not exist. In my view, the national court will need to ascertain whether the use of a geographical reference in a brand name is liable to be confused with names registered pursuant to the regulation and whether the consumer associates particular quality characteristics of wine with the use of the geographical reference in the brand name. V - Conclusion 68. In the light of the foregoing considerations, I propose that the Court answer the question referred by the Cour de cassation as follows: Article 40 of Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts does not in principle preclude the use of the name of a large region as a geographical reference in a brand name, the use of which is not provided for by Article 11 of that regulation. The national court will need to ascertain in each individual case whether the use of a geographical reference in a brand name causes confusion or misleads the consumer. In particular, it will need to ascertain whether the geographical reference is liable to be confused with names registered pursuant to the regulation or whether the consumer associates particular quality characteristics of wine with the use of the geographical reference in the brand name. In that respect, it will also need to take into account the expectations of consumers in other Member States. 1: - Original language: Dutch. 2: - OJ 1989 L 232, p. 13. 3: - OJ 1979 L 54, p. 99. 4: - OJ 1987 L 84, p. 1. 5: - The regulation was repealed on 1 August 2000. The rules in question have now been incorporated in Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1). The rules concerning the description and designation of wine are now to be found in Annex VII to that regulation. 6: - OJ 1987 L 84, p. 59. Regulation No 2392/89 implements that regulation. 7: - The wines referred to here are quality wines produced in a specified region (quality wines psr). 8: - That subparagraph reads: A quality wine psr shall be marketed under the name of the specified region granted it by the producer Member State. 9: - That sentence was added by Council Regulation (EEC) No 3897/91 of 16 December 1991 amending for the third time Regulation (EEC) No 2392/89 laying down general rules for the description and presentation of wine and grape musts (OJ 1991 L 368, p. 5). 10: - Case 56/80 [1981] ECR 583. 11: - Case C-456/93 [1995] ECR I-1737. 12: - Case C-46/94 [1995] ECR I-1859. 13: - Case C-303/97 [1999] ECR I-513. 14: - Cited in footnote 10. In that case the Court held, in connection with similar provisions of Articles 8, 18 and 43 of Regulation No 355/79, that the expressions misleading information, confusion and false impression must be interpreted as covering not only descriptions which are liable to be confused with the description of a particular small locality, but also all descriptions which are liable to induce the public to believe that the description in question is the name, or part of the name, of a wine-growing local administrative area which does not in fact exist or the name of a small locality which does not in fact exist. 15: - According to the observations submitted by the French Government, the designations of origin Bergerac, Bergerac sec and Côtes de Bergerac are regulated in French law by the Decree of 3 September 1993, JORF No 205 of 4 September 1993. 16: - Cited in footnote 12. 17: - Cited in footnote 13. 18: - Cited in footnote 11. 19: - Article 13 defines the term geographical unit which is smaller than the specified region. 20: - Case C-470/93 [1995] ECR I-1923. 21: - See, in particular, Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 31, Case C-220/98 Estée Lauder [2000] ECR I-117, paragraph 27, and Case C-30/99 Commission v Ireland [2001] ECR I-4619. 22: - Cited in footnote 21. 23: - Case C-313/94 [1996] ECR I-6039. 24: - Gut Springenheide and Tusky, cited in footnote 21. 25: - Cited in footnote 10. 26: - Cited in footnote 13. 27: - Council Regulation (EEC) No 2333/92 of 13 July 1992 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines (OJ 1992 L 231, p. 9). 28: - Cited in footnote 11. 29: - Case C-251/95 [1997] ECR I-6191. 30: - Cited in footnote 12. 31: - Cited in footnote 10. 32: - Cited in footnote 11. 33: - Cited in footnote 13; see, in that regard, point 46 of this Opinion. 34: - See point 39 of this Opinion. 35: - In that respect the legislation does not comply with the provisions of the Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation (OJ 1999 C 73, p. 1), in particular guidelines 1 and 14. 36: - Defined in Le Petit Larousse as a collectivité territoriale administrée par le conseil régional. 37: - See in particular the judgments in Gut Springenheide and Tusky, cited in footnote 21, paragraph 31, and Estée Lauder, cited in footnote 21, paragraph 27. 38: - See point 51 of this Opinion.