Opinion of Mr Advocate General Fennelly delivered on 29 September 1998. - Verbraucherschutzverein eV v Sektkellerei G.C. Kessler GmbH und Co.. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brand name - Sparkling wine - Article 13(2)(b) of Regulation (EEC) No 2333/92 - Description of product - Consumer protection - Risk of confusion. - Case C-303/97.



European Court reports 1999 Page I-00513



Opinion of the Advocate-General

1 This case concerns an allegation of confusion in the labelling of German wines. Is the continued use of an established trade mark for Sekt, `Kessler Hochgewächs', prohibited because of an abstract risk of confusion with the name, `Riesling-Hochgewächs', reserved in both Community and national law for wines made exclusively from Riesling grapes?

I - The factual and legal context

A - Background

2 Sektkellerei G.C. Kessler GmbH & Co. (hereinafter `Kessler') produces and markets sparkling wines. For about 60 years it has marketed its top-range Sekt under the name `Kessler Hochgewächs', a description protected in Germany as a trade mark (No 615 242) since 7 June 1950.

3 The plaintiff, Verbraucherschutzverein e.V., which is a consumer protection organisation, has objected to the use of the word `Hochgewächs' on the labelling of the Kessler Sekt, claiming that it is likely to mislead the consumer into thinking that the base wine used for preparation of the cuvée of the Sekt was a Riesling-Hochgewächs wine, as defined in Article 8a of the German Weinverordnung (Wine Regulations, hereinafter `the Wein VO'), (1) under which quality white wines may only be described as `Riesling-Hochgewächs' if, inter alia, they are made exclusively from grapes of the Riesling variety. Since Kessler did not use any Riesling wines for the cuvée of its Sekt, but, rather, mostly French wines of the Chardonnay grape variety, its use of the contested description was alleged to breach both 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 (hereinafter `the sparkling-wine regulation') (2) and Paragraph 3 of the German Gesetz gegen den unlauteren Wettbewerb (Law against Unfair Competition). The plaintiff ultimately sought an order prohibiting Kessler from putting its Sekt on the market under the description `Hochgewächs'.

4 Kessler opposes the claim. It submits that consumers would not be misled, since, firstly, it does not use the dual term `Riesling-Hochgewächs' and, secondly, those involved in the trade would not draw inferences as to the base wine used from the description of a Sekt. Alternatively, Kessler asserts that the application for an injunction should be dismissed since it had acquired valuable property rights in the description `Kessler Hochgewächs' and the interpretation of the sparkling-wine regulation should not result in those rights being undermined.

B - The relevant Community legislation

5 A number of provisions of Community legislation are relevant in the present case. I shall first refer to those concerning still wines. Article 11(1) of Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down the general rules for the description and presentation of wines and grape musts (hereinafter `the 1989 Regulation') sets out the descriptive information which must appear on the labelling of quality wines produced in specified regions (hereinafter `psr'). (3) Article 11(2)(c) provides that the description required by Article 11(1) may be supplemented by `a brand name in accordance with the conditions laid down in Article 40'. Article 40(2) provides, in terms that are very similar to those of Article 13(2) of the sparkling-wine regulation (quoted in paragraph 8 below), that such brand names must not be likely to cause confusion or mislead. Article 11(2)(k) provides that details regarding, inter alia, `the method of production' of the wine may also be provided. The 1989 Regulation has been implemented by Commission Regulation (EEC) No 3201/90 of 16 October 1990 laying down detailed rules for the description and presentation of wines and grape musts. (4) Article 14(3)(a) of Regulation No 3201/90 gives recognition in Community law to the description `Riesling-Hochgewächs', by listing it among the `only terms' which may be used to describe a quality German Riesling wine psr and satisfying the relevant requirements of German law.

6 The description and presentation of sparkling wines is the subject of specific provisions under the sparkling-wine regulation. Article 3 sets out the mandatory information, i.e. information that must appear on the labelling of bottles of sparkling wine. Article 4(1) provides that such information `may be supplemented by other particulars' provided that `they are not liable to mislead the persons for whom the information is intended, particularly as regards the mandatory information specified in Article 3 and the optional information specified in Article 6' and, `where appropriate, the provisions of Article 6 are observed'. Article 6 permits various types of optional information to appear on labels. In the present case, the two most relevant provisions are Article 6(8) and 6(11). Under the former, `reference to superior quality shall only be allowed in the case of, inter alia, "a quality sparkling wine psr" or "a quality sparkling wine", whereas the latter permits the use of the terms "Premium" or "Reserve" as supplements to, among others, the term "quality sparkling wines"'.

7 The central provisions of the sparkling-wine regulation for the purposes of the present case are, however, contained in Article 13. Article 13(1) imposes a general requirement that `the description and presentation of [sparkling wines] and any form of advertising for such products must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed ...'.

8 Article 13(2) contains specific rules concerning brand names. It provides that in cases where `the description, presentation and advertising' of sparkling wines `are supplemented by brand names' they `may not contain any words, syllables, signs or illustrations' which:

`(a) are likely to cause confusion or mislead the persons to whom they are addressed within the meaning of paragraph 1; or

(b) are liable to be confused with all or part of the description of a table wine, a quality wine produced in a specified region, including a quality sparkling wine psr or an imported wine whose description is governed by Community provisions or with the description of any other product referred to in Article 1(1), or are identical to the description of any such product, unless the products used for constituting the cuvée of the sparkling wine in question are entitled to such description or presentation'.

Finally, the first subparagraph of Article 13(3) provides that:

`Notwithstanding paragraph 2(b), the holder of a well-known registered brand name for a product referred to in Article 1(1) which contains wording that is identical to the name of a specified region or the name of a geographical unit smaller than a specified region may, even if he is not entitled to use such a name pursuant to paragraph 2, continue to use that brand name where it corresponds to the identity of its original holder or of the original provider of the name, provided that the brand name was registered at least 25 years before the official recognition of the geographical name in question by the producer Member State in accordance with Article 1(3) of Regulation (EEC) No 823/87 (5) as regards quality wines psr and that the brand name has actually been used without interruption.'

9 The observations submitted in the present case also refer, for the purpose of interpreting Article 13 of the sparkling-wine regulation, to the second, eighth and eighteenth recitals in the preamble to the regulation. The third recital is also, to my mind, relevant. Those four recitals are worded, respectively, as follows:

`Whereas the purposes of description and presentation should always be to provide potential final consumers and public bodies responsible for organising and supervising the marketing of the products concerned with sufficiently clear and accurate information to enable them to form an opinion of the products; whereas rules should therefore be drawn up to ensure that this purpose is served;

Whereas, in the case of descriptive items, a distinction should be made between mandatory information needed to identify a sparkling or aerated sparkling wine and optional information designed mainly to indicate the intrinsic qualities of a product or to distinguish it sufficiently from other products in the same category which compete with it on the market.

...

Whereas, in order to facilitate the marketing of the said products, it should be left to the parties concerned to choose which optional information they wish to include, without provision of an exhaustive list; whereas the choice of optional information should nevertheless be restricted to details which are not inaccurate or liable to create confusion in the minds of final consumers or others for whom the information is intended;

...

Whereas, in order to establish conditions for fair competition between the various sparkling wines and aerated sparkling wines, anything in the description or presentation of such wines likely to confuse or mislead those for whom the information is intended should be prohibited; whereas similar prohibitions should be laid down for brand names used to describe sparkling wines or aerated sparkling wines.'

C - The national proceedings

10 The plaintiff's action was dismissed at first instance and also on appeal. The Oberlandesgericht Köln (Higher Regional Court, Cologne, hereinafter `the appellate court') took the view that, though the plaintiff had shown that there was a risk of misleading, it had offered no evidence to establish that anyone had actually been misled. As regards Article 13(2) of the sparkling-wine regulation, the appellate court held that a specific finding was required that the term `Hochgewächs' was likely to mislead the trade circles addressed; without taking evidence it could not be established that use of the term was likely to mislead for the purposes of the first alternative of Article 13(2)(b), while a claim under the second alternative was not possible since the contested description `Kessler Hochgewächs' was only partially identical with the protected designation `Riesling-Hochgewächs'.

11 The plaintiff appealed on a point of law (`Revision') to the Bundesgerichtshof (Federal Court of Justice, hereinafter `the national court'). The national court has taken the view that the `Kessler Hochgewächs' brand name could be confused, for the purposes of the first alternative of Article 13(2)(b) of the sparkling-wine regulation, with the protected description `Riesling-Hochgewächs' only if, in the absence of a specific finding of confusion, an abstract possibility of confusion were sufficient. It notes that the interpretation of Article 13(2)(b) by the appellate court, whereby an actual finding of confusion is required, though in line with the requirements of Article 2(2) of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (hereinafter `the misleading-advertising Directive'), (6) might go beyond the wording of Article 13(2)(b) of the sparkling-wine regulation. In this respect, the national court observes that use of the terms `cause confusion' and `mislead' as alternatives in Article 13(1) and 13(2)(a) might indicate that where there is no risk of confusion `the prohibition additionally presupposes a risk of misleading' and, consequently, that Article 13(2)(b), read in the light of the second recital in the preamble to the regulation, might mean that `the mere possibility of confusion of opposing descriptions suffices'. Consequently, it decided to refer the following two questions to the Court:

`(a) Does it suffice for the prohibition in Article 13(2)(b) of the [sparkling-wine] regulation to be applicable that a word in a brand name used to describe the sparkling wine (in this case "Hochgewächs") may be confused with part of the description of a wine (in this case "Riesling-Hochgewächs") not used for constituting the cuvée of the sparkling wine, even if it is not the case that a substantial proportion of consumers form mistaken impressions as to the composition of the cuvée which influence their purchases, and there is no intent to deceive on the part of the owner of the brand?

(b) If so, may the industrial property which the owner of the brand has acquired by reason of the traditional undisturbed use of his description in Germany, as a higher-ranking interest deserving protection, preclude the application of the prohibition of descriptions in Article 13(2)(b) of the said regulation?'

II - Observations

12 Written observations were submitted by the plaintiff, Kessler, the French Republic, the Federal Republic of Germany and the Commission, all of whom, with the exception of Germany, also submitted oral observations.

III - Analysis

13 Since it is clear from the order for reference that no specific finding of confusion has been established by the appellate court, the plaintiff's appeal in the main proceedings can only succeed if its submissions regarding the scope of the prohibition contained in Article 13(2)(b) of the sparkling-wine regulation are upheld, and the second question does not arise unless they are.

A - Question 1 and the notion of confusion

(i) Introductory remarks

14 While this case is admittedly concerned with the specific prohibition set out in Article 13(2)(b), which only refers to brand names that are `liable to be confused', I agree with the national court that the latter provision should not be construed in isolation either from Article 13(1) or from Article 13(2)(a). The latter mirrors in respect of brand names the general prohibition of the former. Article 13(2)(a) prohibits, inter alia, the use of `words' in brand names which `are likely to cause confusion or mislead the persons to whom they are addressed'. Article 13(2)(b) is more specifically concerned with the components of brand names which `are liable to be confused' with all or part of defined wine descriptions. It is the interpretation of that provision which is the subject-matter of the first question.

15 The question is whether the use by Kessler of the brand name `Kessler Hochgewächs' for its Sekt `is liable to' confuse consumers into believing that `the products used in constituting the cuvée of [that] sparkling wine' are entitled to the description `Riesling-Hochgewächs'. I agree with the view of the appellate court that there can be no question of Kessler's brand name being regarded as `identical' with the recognised description, since there is at best only a partial similarity between them. The second alternative of Article 13(2)(b) is thus not relevant in this case. Danger of confusion is, not unreasonably, presumed when a name identical with a reserved name is used.

(ii) The scope of the first alternative of Article 13(2)(b)

16 It is thus necessary to consider the scope of the first alternative of Article 13(2)(b) of the sparkling-wine regulation. The plaintiff contrasts the expression `likely to confuse or mislead' in Article 13(2)(a) with the mere reference to being `liable to be confused' in Article 13(2)(b) as showing that mere risk of confusion suffices for the application of the latter. This is, in substance, a textual argument, but it contains two elements. Firstly, it creates a distinction between `misleading' and `confusion' and claims that Article 13(2)(b) concerns only the latter. Secondly, it considers that, in so far as that provision concerns `confusion', it regards a mere risk as being sufficient for its application.

17 I do not accept the textual analysis proposed by the plaintiff and prefer, in broad terms, that advanced by the Commission. The purpose of the distinction between a combined notion of misleadingness and confusion, on the one hand, and the distinct notion of confusion on the other can be traced back to the third recital in the preamble to the sparkling-wine regulation. It draws a fundamental distinction between `mandatory information needed to identify a sparkling or aerated sparkling wine and optional information designed mainly to indicate the intrinsic qualities of a product or to distinguish it sufficiently from other products in the same category which compete with it on the market'. This distinction is reflected in the first instance in Article 13(1), which is concerned with the `description and presentation' of wine products, in particular with concrete information regarding the type of wine and such matters as its composition, alcoholic strength, vintage year and identification of its provenance and its producers. In rules governing these matters, the prohibition is broad enough to cover misleading statements, where the consumer may be the recipient, deliberately or otherwise, of false information, but also confusion, where the term conveys something less definite than deception but still relates to the substantive information provided about the product.

18 Article 13(2) is concerned, however, with the use of brand names and their capacity to mislead or confuse, inter alia, though not exclusively, with products of competing producers. Article 13(2)(a) uses both terms, but refers back to Article 13(1), which demonstrates, in my view, the continued concern with false or misleading information. The contemplated victim of the confusion is here, as in Article 13(2)(b), principally the consumer. (7) The means, in each case, is the use of the brand name. Article 13(2)(b) is concerned with confusion caused by use of a brand name, with a defined range of reserved names - in this case `Riesling-Hochgewächs'. None of this concludes the issue of confusion, the extent of proof required or, in particular, whether a mere abstract risk, as distinct from a likelihood, is sufficient. While `misleading' and `confusion' are overlapping terms, they have distinct meanings. Confusion is the appropriate term when considering, in respect of Article 13(2), the effect on consumers of a claimed similar mark. The issue is, as always, how to establish to the required level of proof that one mark is liable to be confused with another.

(iii) The extent of confusion required

19 The plaintiff, supported by France, contends in substance that the Court should adopt an autonomous construction of the notion of `confusion' under Article 13 of the sparkling-wine regulation. It should not, in its view, be influenced by Article 2(2) of the misleading-advertising directive, which, as interpreted by the Court to require that a reasonably well-informed consumer be confused, sets an unduly low threshold for consumer protection. (8) Moreover, according to the plaintiff, such a requirement would jeopardise the harmonising objective underlying the sparkling-wine regulation, since its application would then be dependent on the views of specific sections of the population in different Member States.

20 France submits that the objective of the sparkling-wine regulation is to ensure that consumers are furnished with comprehensive information on the wines that they purchase. Only the compulsory or optional information for which the regulation provides is permissible. It follows, in its view, that potentially misleading references in trade marks, however unintentional, must not be permitted.

21 In my opinion these submissions are misconceived. The response to these arguments is, in my view, to be found, firstly, in the implicit and explicit approach of the Community legislature to the function of brand names in wine labelling and, secondly, in the case-law of the Court interpreting, in particular, the wine regulations which have been adopted.

22 In the first instance, I think it is clear that, as the Commission and Germany point out, the sparkling-wine regulation does not prohibit the use of brand names. Like the 1989 Regulation, it clearly envisages their continued use in wine labelling. I agree with the Commission that, by adopting Article 13 of the sparkling-wine regulation, the Community legislature has engaged in a balancing exercise between the pursuit of the consumer-protection and fair-competition objectives on the one hand, and the need to respect the intellectual property rights in brand names on the other. In support of this view, the Commission, supported by Germany, refers to the eighth and eighteenth recitals in the preamble to the sparkling-wine regulation (quoted in paragraph 9 above). These recitals manifest a concern to balance the obligations of provision of information about the intrinsic qualities of products, their distinctiveness from competing products, effective marketing and competition and avoidance of confusion. As the Commission rightly contends, the balance sought by Article 13 would be seriously undermined if a mere abstract risk of confusion were enough to preclude the use of a brand name, protected as a trade mark.

23 Article 13(3) of the sparkling-wine regulation (quoted in paragraph 8 above), though, as France points out, not applicable in the present case, is a strong indication of respect for the role of brand names. The disputed brand name here is not identical with the protected `Riesling-Hochgewächs' description. There would, however, seem to me to be no reason in logic or principle why the Community legislature would permit, in the circumstances provided for in Article 13(3), the continued use of such a brand name in the case of identity between the name and the protected description, while prohibiting the use of brand names that only partially correspond to protected descriptions whenever an abstract risk of confusion arises.

24 A further reason for rejecting the sufficiency of a mere abstract possibility of confusion emerges from the submissions made by Germany, supported by Kessler, regarding the anomaly that would then arise between, respectively, the use on labels of brand names and `references to superior quality'. Since the use of quality references is expressly permitted by Article 6(8) of the sparkling-wine regulation, a sparkling-wine producer may utilise terms like `Hochgewächs' on its label, instead of the terms `Premium' or `Reserve' recognised by Article 6(11), to supplement a reference to its product's superior quality. Although such a reference might be abstractly capable of inducing certain consumers into assuming that the sparkling wine in question was produced from a cuvée that would satisfy the requirements for the `Riesling-Hochgewächs' description, since it would not in such a case be part of a brand name, its use would be subject not to Article 13(2) but, instead, to the general provisions of Articles 4(1) and 13(1). I agree with Germany that the use of such quality references in isolation on labels of sparkling wines cannot be subject to a different legal standard from that applied to their use as part of brand names. Indeed, it is arguable, as Germany contends, that where they are clearly used in brand names, as opposed to appearing independently on labels, the risk of confusion is diminished because consumers can see that the reference is part of a brand name and, thus, not necessarily to be treated as information about the product. To my mind, there is nothing in the regulation to indicate that its authors intended that the use of quality references in respect of sparkling wines, which they expressly authorised in Article 6(8) and (11), would be subject to prohibition if they were merely theoretically capable of causing confusion as to the characteristics of the base wine used in the cuvée. The use of such references in brand names should not be subject to any more onerous requirements, particularly given the property interest involved. On the basis of the terms of these provisions and, in particular, of the important function reserved for brand names, I do not consider that a mere abstract risk of confusion suffices for the application of Article 13(2)(b) of the sparkling-wine regulation.

25 Secondly, I shall review some of the Court's case-law concerning comparable prohibitions in other Community legislation, and in particular in the largely similar 1989 Regulation. In Langguth (9) the Court was concerned with the use of the terms `Kabinett', `Spätlese' `Auslese' and `Weissherbst' as part of the brand names of certain quality still wines psr. These terms (other than `Weissherbst', whose use is optional) are necessary in the description of German quality wines (`Qualitätswein mit Prädikat') but they appeared, in the impugned brand names, in eye-catching characters that were approximately three times as large as that of the lettering used in the appellations. The Court took the view that the case fell to be considered under Article 40 of the 1989 Regulation since the disputed terms were contained in brand names. The wording of Article 40(2), as mentioned above, is almost identical to that of Article 13(2). (10) The Court rejected the submissions of the Commission and the plaintiff that the addition of the disputed terms in such a conspicuous manner in the brand names might create confusion or mislead consumers, especially those resident outside Germany. Noting that the 1989 Regulation did not regulate the size of lettering that was permissible in a brand name, it held that:

`[T]he 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.' (11)

The Court then declared that the wording of Article 40 of the 1989 Regulation `shows that it is aimed primarily at prohibiting the untruthful use of brand names ...'. (12) The plaintiff has sought to distinguish Langguth from the present case by referring to the fact that the wines at issue in that case were entitled to bear the appellations invoked by the terms used in the disputed brand names. I do not find that distinction convincing. It assumes that Kessler, in the present case, is not entitled to use the term `Hochgewächs' in its brand name, whereas in Langguth, the Court emphasised that Article 40 of the 1989 Regulation did not impose any restriction concerning either the lettering of the characters or the size of a brand name.

26 It is undisputed that Kessler has been using the disputed brand name for around 60 years. To my mind, having regard both to Article 222 of the Treaty and the general principles of Community law under which `both the right to property and the freedom to pursue a trade or business' (13) are assured, the germane question to ask is rather whether the exercise by Kessler of its property rights has been curtailed in the interests of avoiding the risk of confusion posed by the disputed brand name. Viewed in that light, I consider that the appropriate inference to be drawn from Langguth, for the purpose of construing Article 13(2) of the sparkling-wine regulation, is that, before the bona fide use of a brand name should be regarded as `likely to cause confusion or mislead the persons to whom it is addressed' (my emphasis), the national court responsible for deciding the facts must be satisfied that there is a real risk of confusion. (14)

27 Furthermore, Advocate General Léger in his Opinion in Langguth noted, in particular, that the 1989 Regulation did not produce complete harmonisation of the description and presentation of wines and grape musts. He also considered that the rules concerning the use of appellations of origin did not concern their use as trade marks and also, rightly in my view, emphasised that it is for the national court to determine whether a term is likely to mislead or confuse consumers.

28 Voisine (15) also concerned the 1989 Regulation, in particular whether decorations on bottles of wine (and sparkling wine) that were unconnected with the wine itself were covered by the definition of labelling in Article 38 of that regulation. In a prosecution under a French law concerning fraud and falsification of products, it was claimed that it was misleading to market in certain towns `bottles carrying photographs of the towns in which the bottles were on sale, together with a short text concerning the town's history'. (16) Such labels were alleged to be likely to mislead buyers as to the origin of the wine. The Court held that such decoration was covered by the definition of labelling because it could deceive consumers even though it was not connected with the wine itself. Referring also to the conditions set out in Article 40(2) of the 1989 Regulation in respect of the use of brand names to supplement the description on the labelling of wine, the Court declared that decorations such as those used by Ms Voisine were covered by those conditions. In substance, the Court decided only that labelling of the kind at issue came within the definition of labelling on the basis, inter alia, that it was capable of misleading consumers as to the origin of the wine. It was left to the national court to apply it to the particular case and the Court did not, in that case, have to consider the issue of confusion caused by the use of brand names. (17)

29 This approach is consistent with the Court's case-law in other fields, such as under the misleading-advertising directive. (18) In Complaint against X, the Court was essentially concerned with whether a car previously registered in Belgium but not driven there and then imported into France could still be considered as `new'. (19) The Court agreed with the Commission that a new car only loses its novel character when driven on a public highway, but left to the national court the task of ascertaining, `in the circumstances of the particular case and bearing in mind the consumers to which the advertising is addressed', whether such a claim `could be misleading in so far as, on the one hand, it seeks to conceal the fact that the cars advertised as new were registered before importation and, on the other hand, that fact would have deterred a significant number of customers from making a purchase, had they known it'. (20)

30 Similarly, in cases where consumer protection grounds have been invoked to justify restrictions on the sale or marketing of imported products which would otherwise infringe Article 30 of the Treaty, the Court has referred to the notion of `reasonably circumspect consumers'. (21) Notwithstanding the fact that the Court is informed that the wines used by Kessler in its cuvée were mostly imported from France, the possible relevance of Article 30 has not been invoked in the present case, which concerns the sale of German-produced sparkling wine in Germany. Nevertheless, I think that the significance of the reference to `reasonably circumspect consumers' is that it indicates that the Court is generally slow to assign an unduly broad interpretation to the notion of confusion in the light of its potential to act as a hindrance to trade. Thus, in respect of trade marks, the Court, in IHT Internationale Heiztechnik v Ideal Standard, (22) recalling its earlier statement in Deutsche Renault v Audi (23) that `Community law does not lay down any criterion requiring a strict interpretation of the risk of confusion', held that there would be an arbitrary restriction on trade between Member States `if [a] national court were to conduct an arbitrary assessment of the similarity of products'. (24)

31 The plaintiff, however, submits that a requirement of concrete proof of confusion would be unduly onerous and should not be applied to the interpretation of Article 13(2)(b) of the sparkling-wine regulation. Read as a whole and in the light of the 18th recital in the preamble to the regulation, Article 13(2) is, in my view, concerned with avoiding anything in the description or presentation of sparkling wines which is likely to mislead or confuse those to whom the label is addressed. An inference of risk of confusion may be drawn from the comparison of labels made by the national court based on its own appreciation of the issue of their similarity. This may or may not be supplemented by evidence in the form of market or consumer studies or the like. I do not consider that such a pragmatic approach - which is, in substance, the one adopted by the German courts in the present case - imposes any undue burden.

32 Support for this approach also emerges from the Court's interpretation of the trade-marks directive. (25) In Sabel v Puma, (26) although the Court was dealing with confusion as between different trade marks, it is significant that it held that the `likelihood of confusion' must be `appreciated globally, taking into account all factors relevant to the circumstances of the case'. (27) Referring to Article 4(1)(b), which speaks of `... a likelihood of confusion on the part of the public', the Court viewed it as showing `that the perception of marks in the mind of the average consumer of the type of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion'. (28) Moreover, such a consumer, the Court also declared, `normally perceives a mark as a whole and does not proceed to analyse its various details'. (29)

33 The recent judgment in Gut Springenheide, which concerned allegedly misleading information contained in both a trade mark used on and a notice supplied inside the packaging of eggs, confirms the Court's tendency to take a consistent approach to misleading information concerning both agricultural and industrial products whether under the Treaty or secondary legislation. (30)

34 The information which was found to be misleading in Gut Springenheide concerned the food given to the chickens the sale of whose eggs it was designed to promote. A fine was imposed by the relevant German food-control authorities. The plaintiff's action against that fine was rejected at first instance and on appeal. The appellate court held that the information was capable of misleading a not insignificant proportion of consumers. On further appeal, the referring court took the view that the prohibition at issue, (31) namely of misleading statements on packaging designed to promote sales, was open to two interpretations: (32)

`Either the misleading nature of the statements in question is to be assessed in the light of the actual expectations of consumers, in which case those expectations ought, if necessary, to be ascertained by means of a survey of a representative sample of consumers or on the basis of an expert's report, or the provision in question is based on an objective notion of a purchaser, which is only open to legal interpretation, irrespective of the actual expectations of consumers.'

Having noted, inter alia, that the prohibition at issue was analogous to that laid down in the 1989 Regulation, the Court held that, `in order to determine whether the description, trade mark or promotional description or statement in question was liable to mislead the purchaser', it would, where it was in a position, because the evidence and information before it seemed sufficient and the solution clear, to decide the matter, take `into account the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect, without ordering an expert's report or commissioning a consumer research poll'. (33) On the other hand, where the available evidence and information does not lead to a clear solution, the Court will leave it to the national court to decide if the description or trade mark used is misleading.

35 I see no reason why the same approach should not apply in the present case. The appropriate national court must determine whether, notwithstanding the abstract risk of confusion posed by the continued use of the disputed trade mark, any of the persons addressed, exercising reasonable caution, would actually be led to confuse the brand name at issue, `Kessler Hochgewächs', with the protected description, `Riesling-Hochgewächs'. The national court will be able to assess, in particular, the effect on German consumers. In this respect, it is worth recalling that the Court in Graffione v Ditta Fransa, (34) referring with approbation to paragraph 10 of the Opinion of Advocate General Jacobs in that case, declared that `it is possible that because of linguistic, cultural and social differences between the Member States a trade mark which is not liable to mislead a consumer in one Member State may be liable to do so in another'. (35)

36 In the present case, it is noteworthy, as counsel for Kessler pointed out at the hearing, that in German law the courts may decide that it is not necessary for proof of confusion to be established if judges are capable of determining whether a genuine risk of confusion or error arises. This would particularly be the case where the judges are themselves amongst the potential consumers addressed by the allegedly misleading or confusing information. The information before the Court in the present case would, however, tend to suggest that, outside of trade circles, awareness of the significance of the `Riesling-Hochgewächs' description is limited. In those circumstances, it is hardly surprising that the first-instance and appellate German courts in the main proceedings in the present case were not satisfied, on the basis of legal submissions alone, that anything other than an abstract risk of confusion had been established. For the reasons given above, such a risk cannot operate to restrain the bona fide and long-established use of a recognised brand name, especially one protected as a trade mark. Consequently, if a consumer-protection organisation like the plaintiff wishes to obtain a prohibition of such genuine use of a brand name, it must be prepared to provide evidence, either by calling expert witnesses, by conducting appropriate market surveys or otherwise, that the persons addressed are liable actually to be confused.

37 It follows, in my view, that an abstract risk of confusion arising from the use of a brand name on bottles of sparkling wine does not, in itself, suffice to render applicable the prohibition in Article 13(2)(b) of the sparkling-wine regulation.

B - Question 2

38 In the light of the answer which I propose in respect of the first question referred, I do not think it necessary to address the second question.

IV - Conclusion

39 Accordingly, I recommend that the Court answer the first question referred by the Bundesgerichtshof as follows:

It does not suffice for the prohibition in Article 13(2)(b) of Council Regulation (EEC) No 2333/92 of 13 July 1993 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines to be applicable that a word in a brand name used to describe a sparkling wine (in this case `Hochgewächs') may, in the abstract, be capable of being confused with part of the description of a wine (in this case `Riesling-Hochgewächs') not used for constituting the cuvée of the sparkling wine at issue.

(1) - This provision was originally inserted into the Wein VO on 29 July 1986 and became Article 34 following the adoption of a new Wein VO of 9 May 1995; see BGBl. I, p. 630.

(2) - OJ 1992 L 231, p. 9.

(3) - OJ 1989 L 232 p. 13.

(4) - OJ 1990 L 309 p. 1.

(5) - Council Regulation (EEC) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions; OJ 1987 L 84 p. 59.

(6) - OJ 1984 L 250, p. 17.

(7) - The reference to `the persons to whom [descriptions and presentations] are addressed' indicates that Article 13 is not confined to consumers. Thus, in certain circumstances alleged confusion might, for example, concern persons participating in the trade, but it seems to me unlikely that such persons, as opposed to final consumers, would be confused by the use of a brand name.

(8) - Article 2(2) of that directive defines misleading advertising as: `any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor'.

(9) - Case C-456/93 [1995] ECR I-1737.

(10) - In Case C-46/94 Voisine [1995] ECR I-1859, the Court stated (paragraph 28) that `the conditions laid down in Article 40(2) of the [1989 Regulation] ... are substantively similar to the conditions laid down in Articles 4(1) and 13 of Regulation No 3309/85 concerning quality sparkling wines psr' (Council Regulation (EEC) No 3309/85 of 18 November 1985 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines; OJ 1985 L 320 p. 9), which latter regulation was consolidated by the sparkling-wine regulation that is at issue in the present case.

(11) - Langguth,loc. cit., paragraph 28.

(12) - Paragraph 29.

(13) - See, among others, Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 78.

(14) - I also do not think that Case 56/80 Weigand v Schutzverband Deutscher Wein [1981] ECR 583 provides any support for the plaintiff's view. In that case the Court had to determine whether `confusion' for the purposes of Council Regulation (EEC) No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts (OJ 1979 L 54, p. 99), which was repealed by the 1989 Regulation, could occur where a wine trader used as descriptions on the labels and in its advertising of two of its wines brand names that suggested that the wines in question came from local German wine-producing regions/areas which, in fact, did not exist. In the circumstances Weigand submitted that the names were not confusing. However the Court found that the notion of confusion did not only cover confusion `in the narrow sense of the word, but also the use of all deceptive information'; paragraph 19. Contrariwise, the present case is concerned not with the scope of the notion of confusion but with what degree of confusion must be established.

(15) - Case C-46/94, cited in footnote 10 above.

(16) - Paragraph 2 of the Opinion of Advocate General Elmer.

(17) - Advocate General Elmer also took the view that the relevant decorations were covered by Article 38(1) of the 1989 Regulation; see paragraph 12 of his Opinion. He went on to consider whether such labelling could cause confusion for the purposes of Article 40(2) of that regulation. While satisfied that the information they conveyed could cause confusion, he found it `extremely difficult to lay down general guidelines as to what information might be misleading or give rise to confusion and what would not' and, consequently, he considered that the determination should ultimately `hinge on a factual assessment of the circumstances of the individual case'; paragraph 14.

(18) - The definition of misleading advertising set out in Article 2(2) of that directive is quoted in footnote 8 above.

(19) - Case C-373/90 [1992] ECR I-131.

(20) - Ibid., paragraph 15.

(21) - See Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln v Mars [1995] ECR I-1923, paragraph 24. The Court was concerned with the compatibility with Article 30 of prohibiting the marketing of imported ice-cream snacks because, inter alia, of a potentially misleading presentation on the wrappers of the extra size of the snacks during a publicity campaign; the coloured part announcing the `+10%' represented more than 10% of the total surface area of the wrapper. It had little difficulty rejecting the claim that `a not insignificant number of consumers' would be `induced' by such wrapping into `believing ... that the increase is larger than that represented' (paragraph 22) and, accordingly, held that: `Reasonably circumspect consumers may be deemed to know that there is not necessarily a link between the size of publicity markings relating to an increase in a product's quantity and the size of that increase'.

(22) - Case C-9/93 [1994] ECR I-2789 (hereinafter `Ideal Standard').

(23) - Case C-317/91 [1993] ECR I-6227, paragraph 32.

(24) - Ideal Standard, paragraph 19.

(25) - First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, OJ 1989 L 40, p. 1.

(26) - Case C-251/95 [1997] ECR I-6191.

(27) - Ibid., paragraph 22.

(28) - Paragraph 23.

(29) - Ibid.

(30) - Case C-210/96 Gut Springenheide and Another v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung and Another [1998] ECR I-0000 (hereinafter `Gut Springenheide').

(31) - See Article 10(2)(e) of Council Regulation (EEC) No 1907/90 of 26 June 1990 on certain marketing standards for eggs; OJ 1990 L 173, p. 5.

(32) - Gut Springenheide, paragraph 14.

(33) - Ibid., paragraph 31.

(34) - Case C-313/94 [1996] ECR I-6039.

(35) - Ibid., paragraph 22.