Bureau national interprofessionnel du Cognac v Gust. Ranin Oy.
Date: 2011-07-14
25. It is settled law that, as a general rule, the principle of legal certainty precludes an EU measure from taking effect from a point in time before its publication, but it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (see, inter alia, Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission  [2002] ECR I‑7869, paragraph 119, and Case C‑120/08 Bavaria  [2010] ECR I‑0000, paragraph 40).
26. In that regard, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of EU law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such effect must be given to them (see, inter alia, Falck and Acciaierie di Bolzano v Commission , paragraph 119; Bavaria , paragraph 40; and Case C‑369/09 P ISD Polska and Others  v Commission  [2011] ECR I‑0000, paragraph 98).
40. It should be recalled at the outset that, under the second paragraph of Article 288 TFEU, regulations have general application and are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of EU law, regulations have immediate effect and operate to confer rights on individuals which the national courts have a duty to protect (see, inter alia, Case 34/73 Variola  [1973] ECR 981, paragraph 8, and Case C‑253/00 Muñoz and Superior Fruiticola  [2002] ECR I‑7289, paragraph 27).
46. Points (a) to (d) of Article 16 of Regulation No 110/2008 refer to various situations in which the marketing of a product is accompanied by an explicit or implicit reference to a geographic indication in circumstances liable to mislead the public as to the origin of the product or, at the very least, to set in train in the mind of the public an association of ideas regarding that origin, or to enable the trader to take unfair advantage of the reputation of the geographical indication concerned.
47. The protection thus conferred on geographical indications by Article 16 of Regulation No 110/2008 must be interpreted in the light of the objective pursued through the registration of those indications, namely – as is clear from recital 14 to that regulation – to enable the identification of spirit drinks as originating in a particular area, where a given quality, reputation or other characteristic of those drinks is essentially attributable to its geographical origin.
49. The question whether a particular spirit drink meets all the specifications applicable to a protected geographical indication is a question of fact which is a matter to be determined by the competent national authorities and which must be decided before the examination as to whether Article 16 of Regulation No 110/2008 may be applicable.
55. It follows that, in such a situation, it would have to be held that the use 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 relevant specifications constitutes, for the purposes of Article 16(a) of Regulation No 110/2008, a direct commercial use of a geographical indication in respect of products which are comparable to the spirit drink registered under that indication, but which are not covered by the registration.
56. As regards the concept of ‘evocation’, as referred to in Article 16(b) of Regulation No 110/2008 and to which the order for reference in Case C-4/10 refers, it is appropriate to point out that that concept 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 Case C‑87/97 Consorzio per la tutela del formaggio Gorgonzola  [1999] ECR I-1301, paragraph 25, and Case C-132/05 Commission  v Germany [2008] ECR I-957, paragraph 44).
57. More specifically, the Court has held that that could be the position in the case of products with visual similarities and sales names which are phonetically and visually alike ( Consorzio per la tutela del formaggio Gorgonzola , paragraph 27, and Commission  v Germany , paragraph 46).
58. It seems reasonable to transpose those findings to the situation, referred to in Question 2, concerning 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. The use of a mark containing the element ‘Cognac’ for spirit drinks which do not meet the relevant specifications may therefore be categorised as an ‘evocation’ for the purposes of Article 16(b) of Regulation No 110/2008.
59. It should be added that, in accordance with that provision, the mention of the actual origin of the product or the use of the geographical indication in translation or accompanied by an expression such as ‘like’, ‘type’, ‘style’, ‘made’, ‘flavour’, or any other similar term, would not alter that categorisation.
66. In that connection, it should be recalled that the direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law, strict compliance with that obligation being an indispensable condition for the simultaneous and uniform application of regulations throughout the European Union (see, to that effect, Variola , paragraph 10). Accordingly, Regulation No 110/2008 must apply independently of the rules transposing Directive 89/104 into the national legal order.
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