Viiniverla Oy v Sosiaali- ja terveysalan lupa- ja valvontavirasto.
Date: 2016-01-21
21


According to the Court’s case-law, the concept of ‘evocation’ covers a situation in which 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 protected (see, as regards Article 16(b) of Regulation No 110/2008, judgment in Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 56; see also, concerning Article 13(1)(b) of Council Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1), judgments in Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 25, and Commission v Germany, C‑132/05, EU:C:2008:117, paragraph 44).
22


It is true that Article 16(b) of Regulation No 110/2008 does not expressly refer to the concept of ‘consumer’. However, it follows from the case-law referred to in the previous paragraph that, for the purpose of finding the existence of an ‘evocation’ within the meaning of that provision, the Court has ruled that it is for the national court to verify, in addition to the inclusion of part of a protected name in the term used to designate the product at issue, 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 protected. Therefore, the national court must essentially rely on the presumed reaction of consumers in the light of the term used to designate the product at issue, it being essential that those consumers establish a link between that term and the protected name.
23


In that context, it should be noted that the protection provided by Article 16 of Regulation No 110/2008 to geographical indications must be interpreted in the light of the objective pursued by the registration of those indications, namely, as is apparent from recital 14 of that regulation, to allow the identification of spirit drinks as originating from a specific territory in situations where a given quality, reputation or other characteristic of those drinks may be essentially attributed to that geographical origin (judgment in Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 47).
24


Moreover, the system of registration of geographical indications of spirit drinks provided for by Regulation No 110/2008 seeks to contribute, as is noted in recital 2 of that regulation, not only to the prevention of deceptive practices and the attainment of market transparency and fair competition, but also to the attainment of a high level of consumer protection.
25


It is apparent from established case-law relating to consumer protection, that, in general, it is necessary in that field to take account of the presumed expectation of the average consumer, who is reasonably well informed and reasonably observant and circumspect (see, inter alia, judgments in Mars, C‑470/93, EU:C:1995:224, paragraph 24; Gut Springenheide and Tusky, C‑210/96, EU:C:1998:369, paragraph 31; Estée Lauder, C‑220/98, EU:C:2000:8, paragraph 30; Lidl Belgium, C‑356/04, EU:C:2006:585, paragraph 78; Severi, C‑446/07, EU:C:2009:530, paragraph 61; Lidl, C‑159/09, EU:C:2010:696, paragraph 47; and Teekanne, C‑195/14, EU:C:2015:361, paragraph 36).
26


In order to assess the ability of a word used to designate a product to evoke a protected name for the purposes of Article 16(b) of Regulation No 110/2008, it is likewise necessary to apply such a criterion, which is based on the principle of proportionality (see, to that effect, judgment in Estée Lauder, C‑220/98, EU:C:2000:8, paragraph 28).
27


As regards, moreover, the referring court’s doubt regarding the relevance, in assessing the concept of ‘evocation’ within the meaning of Article 16(b) of Regulation No 110/2008, of the fact that the name ‘Verlados’ refers to the place where the product at issue in the main proceedings is manufactured, which is known to Finnish consumers, it should be noted that Article 16(b) of Regulation No 110/2008 protects geographical indications registered in Annex III thereto against any ‘evocation’ throughout the territory of the European Union. In the light of the need to guarantee effective and uniform protection of those geographic indications in that territory, it must be considered, as do the Italian Government and the Commission, that the concept of ‘consumer’, referred to in the case-law cited in paragraph 21 above, covers European consumers and not merely consumers of the Member State in which the product giving rise to the evocation of the protected geographical indication is manufactured.
28


In the light of the foregoing considerations, the answer to the first question is that Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that, in order to assess whether there is an ‘evocation’ within the meaning of that provision, the national court is required to refer to the perception of the average consumer who is reasonably well informed and reasonably observant and circumspect, that concept being understood as covering European consumers and not only consumers of the Member State in which the product giving rise to the evocation of the protected geographical indication is manufactured.
31


It should be noted, first of all, that it is for the referring court to assess whether the name ‘Verlados’ for cider spirits constitutes an ‘evocation’ within the meaning of Article 16(b) of Regulation No 110/2008 of the protected geographical indication ‘Calvados’. However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its decision (see, to that effect, judgments in Severi, C‑446/07, EU:C:2009:530, paragraph 60, and, to that effect, Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 49).
33


In that regard, the Court has held that it was legitimate to consider that there is evocation of a protected name where, concerning products which are similar in appearance, the sales names are phonetically and visually similar (see, to that effect, judgments in Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 27; Commission v Germany, C‑132/05, EU:C:2008:117, paragraph 46; and Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 57).
34


The Court has held that such similarity was clear where the term used to designate the product at issue ends in the same two syllables as the protected name and contains the same number of syllables as that name (see, to that effect, judgment of 4 March 1999 in Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 27).
35


The Court has also ruled that it is necessary, where appropriate, to take account of the ‘conceptual proximity’ between terms emanating from different languages, since such a proximity and the phonetic and visual relationship referred to in paragraph 33 above are such as to bring to the mind of the consumer the product whose geographic indication is protected, when he is confronted with a similar product bearing the disputed name (see, to that effect, judgment in Commission v Germany, C‑132/05, EU:C:2008:117, paragraphs 47 and 48).
36


In addition, the Court held that the registration of a mark containing a geographical indication or a term corresponding to that indication and its translation, with respect to spirit drinks which do not meet the specifications required by that indication, constituted an evocation within the meaning of Article 16(b) of Regulation No 110/2008 (judgment in Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 58).
39


It is also for the referring court to take into account, in accordance with the Court’s case-law, possible information capable of indicating that the visual and phonetic relationship between the two names is not fortuitous (see, to that effect, judgment in Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 28).
42


In the first place, the referring court points out that the name ‘Verlados’ refers, first, to the name of the undertaking Viiniverla, which manufactures that drink, and, secondly, to the village of Verla, which is known to Finnish consumers, so that that name is not capable of misleading those consumers.
43


In that regard, it should be noted, first of all, that, according to Article 16(b) of Regulation No 110/2008, there may be an ‘evocation’ even if the true origin of the product is indicated (see, to that effect, judgment in Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 59).
44


Next, it should be stated that Article 16(b) of Regulation No 110/2008 protects geographical indications registered in Annex III thereto against any ‘evocation’ throughout the territory of the Union. In that regard, it was noted, in paragraph 27 above, that the concept of ‘consumer’ referred to in the case-law cited in paragraph 21 above covers European consumers and not only consumers of the Member State in which the product giving rise to the evocation of the protected geographical indication is manufactured.
45


Finally, the Court has already held that there can be ‘evocation’ even in the absence of any likelihood of confusion between the products concerned (judgments in Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 26, and Commission v Germany, C‑132/05, EU:C:2008:117, paragraph 45), since what matters is, in particular, that there is not created in the mind of the public an association of ideas regarding the origin of the products, and that a trader does not take undue advantage of the reputation of the protected geographical indication (see, to that effect, judgment in Bureau national interprofessionnel du Cognac, C‑4/10 et C 27/10, EU:C:2011:484, paragraph 46).