This is what the Court of Justice of the European Union has been requested by the German Supreme Court in a case involving Comité Interprofessional du Vin de Champagne v. Aldi Einkauf GmbH & Co. OHG Süd, and on which question the Advocate General Campos Sánchez-Bordona has recently formulated his opinion.

According to the AG, there is no doubt that where a PDO is used for a product which itself does not fulfil the relevant product specifications, it inherently constitutes an exploitation of the reputation of the PDO according to Article 103(2)(a)(ii) Regulation 1308/2013. This is a prohibited act under the law addressing protected geographical indications (PGIs) and therefore a prerogative reserved for the legitimate users of the PDO.

Legitimate interest
Nevertheless, there are situations in which it is legitimate to use a PDO. The referring Court has indicated circumstances which the CJEU will have to check as to whether they would confer such a legitimate use. According to the referring Court, Germans commonly use the term “Champagner Sorbet”   as the customary name for such desserts, similar to mousse au chocolat and crème brulée and hence may have a legitimate interest to use the customary term for the relevant products.

The AG opposes this argument, due to the fact that one of the main purposes of the protection of PDOs is to prevent a term from becoming generic – hence a customary name. That Germans use it as such cannot in itself represent a legitimate interest.

Legal imperative
However, according to the Food Information to Consumers (FIC) Regulation, food operators must indicate, among others, the name of the food (Art. 9.1). And the name of the food may derive from 1) its legal name, or in its absence, from 2) its customary name or descriptive name (Art. 17.1). Since there is no legal name for “Champagner Sorbet”, the question arises whether this term classifies as the customary name (the name which is accepted by German consumers as the name of the dessert, without that name needing further explanation) and whether there is no other (descriptive) name (for example “sparkling wine sorbet”) that could present a viable alternative for informing consumers on the nature of the product.

Should the national court come to the affirmative conclusion (which the Munich Court of Appeal seems to have reached), a legal imperative may exist to use the customary name of the product (“Champagner Sorbet”) regardless of the principle in GI law that protected PDOs may not become generic.

Guidelines on the labelling of foodstuffs using PDOs or PGIs as ingredients
Even though not legally binding and not written for PDOs or PGIs on wines and spirits, the AG looks for further guidance in the Guidelines on the labelling of foodstuffs using PDOs or PGIs as ingredients. Such guidelines were in fact drafted by the Commission to address situations where a PDO is the ingredient of a product. Accordingly, PDO or PGI may be used legitimately in the trade name if:

• no ‘comparable ingredient’ is contained in the dessert
• the ingredient is used in sufficient quantities to confer an essential characteristic, and
• the percentage is indicated in close proximity of the trade name or in the list of ingredients.

So where “Champagner Sorbet” does not contain any other sparkling wine, the finesse, taste and aroma of Champagne are recognizable in the sorbet and the percentage is indicated (12% appeared on the label), the national court may determine that the product could be called “Champagner Sorbet”. In view of the fact that most recipes for this dessert use 40 - 65% of Champagne, it is doubtful however, whether the sorbet carries the essential characteristics of Champagne.

Left unanswered
Suppose the Guidelines suggest a legitimate use, it still remains unclear what the exact relationship would be with the possible legal imperative suggested by Art. 9(1) jo. 17(1) FIC Regulation. It is conceivable that the use of the customary name would also have to comply with the Guidelines. It would be desirable if the Court clarified how a situation where the PDO indeed represents the customary name of a product should be treated, as this has been left unanswered by the AG.