CJEU Preliminary ruling on geographical indications: pickling away at amendments of specification.

Background

The preliminary ruling was originally based on a 2012 application by Spreewaldverein e.V. to amend the specification of the protected geographical indication (GI) "Spreewälder Gurken", according to which certain colorings and sweeteners, as well as preservatives, would also be permitted in the future. The company Hengstenberg GmbH & Co. KG, a competitor which is not itself located in the geographical area of Spreewald, saw this as an unjustified competitive advantage. They claimed that the amendment would mean that producers from the geographical area could continue to label their gherkins with the sales-promoting indication "Spreewälder Gurken", without having to comply with the "traditional methods of preservation and processing" associated with this designation.

Main proceedings

The legal basis of the proceedings is the Regulation on quality schemes for agricultural products and foodstuffs (Regulation [EU] 1151/2012). Since the requested changes to the specification were not minor within the meaning of Article 53(2)(1) of the Regulation, the simplified national procedure did not take place, but an objection procedure in accordance with Articles 49 et seq. of the Regulation. According to this, "any natural or legal person having a legitimate interest" must be able to object to the application in a national procedure. The Hengstenberg company made use of this option. However, in the opinion of the German Patent and Trademark Office (DPMA), the specification amendment request submitted by Spreewaldverein e.V. complied with the requirements of Regulation (EU) 1151/2012. Hengstenberg GmbH subsequently filed an appeal with the Federal Patent Court (BPatG).

The BPatG dismissed the appeal on the grounds that Hengstenberg GmbH lacked the necessary substantive entitlement to appeal. In this respect, the Court distinguished between applications for registration, and applications for amendment of the specification. In an amendment procedure, no legitimate interest within the meaning of Article 49 could be identified per se for a producer who was not domiciled in the geographical area of origin and who was not permitted to use the designation in any case. Nor does such an interest arise from the general devaluation of the protected geographical indication or from damage to the reputation or image of the product. The Court found that the appeal was also not well-founded on the merits, since even the current version of the specifications did not contain a general prohibition of additives. Since the BPatG allowed the appeal on points of law, Hengstenberg GmbH turned to the Federal Court of Justice (BGH).

The BGH in turn referred three questions on the interpretation of the concept of legitimate interest within the meaning of Article 49 of the Regulation to the CJEU for a preliminary ruling, of which this Court in the end only dealt with the following question:

“Is any actual or potential economic concern of a natural or legal person, which is not beyond all probability, sufficient to establish a legitimate interest?” (Abridged reproduction)

CJEU ruling (15.4.2021, C-53/20)

First of all, the CJEU clarifies that the concept of legitimate interest in Art. 49(3)(1) and (4)(2) of the Regulation is to be interpreted in the same way both in the case of direct application and in the case of application via the reference in Art. 53(2)(1). The Court thus disagreed with the opinion of the BPatG that a differentiation between registration and amendment procedures had to be made.

Furthermore, it was to be inferred from the wording "any natural or legal person" that a legitimate interest is neither exclusively reserved to the economic operators established in the geographical area of the GI, nor to those whose products bear the GI.

Moreover, the examination by the competent Member State body on the admissibility of the objection is of particular importance to enable objection by all economic operators who "may derive an advantage in economic terms from the registration or the non-minor amendment of the specification of a product or, on the contrary, may suffer damage as a result of it".

Furthermore, it follows from the recitals to the regulation that geographical indications of source create the perception in the mind of the public that the quality and method of production of the products constitute a value-creating factor. In order to ensure this, a broad interpretation of the term "legitimate interest" is required, since only in this way can a wide circle of persons influence compliance with these standards. Moreover, such an interpretation is also aligned with ensuring uniformity within the Union and legal certainty.

The CJEU answered the first question referred for a preliminary ruling by stating that

"in proceedings concerning applications for non-minor amendments to the specification for products bearing a protected geographical indication, any actual or potential, but not beyond all probability, economic concern of a natural or legal person may give rise to a 'legitimate interest' [within the meaning of Article 49 of the Regulation] [...] unless the risk that the interests of such a person will be adversely affected is extremely improbable or hypothetical, which is a matter for the referring court to determine."

Implications

The CJEU has thus clarified that competitors not established in the geographical area may also have a legitimate interest within the meaning of the Regulation. Accordingly, the legitimate interest is to be interpreted broadly in principle. The ruling is to be seen as strengthening the integrity of the system of geographical indications, as it has been made clear that quality expectations can only be met through extensive access to control mechanisms.

Now the German Federal Court can turn its attention to the question of whether the decision of the German Federal Patent Court that the appeal was not well-founded. Particular weight will be given to the fact that the claim that the valid specification does not contain a general prohibition of additives, was issued without any legal error.

Authored by Thorsten Klinger