Regulation (EC) No 110/2008 (spirit drinks)
4 preliminary rulings
Judgment of 7 Jun 2018, C-44/17 (Scotch Whisky Association) 
Article 16(a) of Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 must be interpreted as meaning that, for the purpose of establishing that there is ‘indirect commercial use’ of a registered geographical indication, the disputed element must be used in a form that is either identical to that indication or phonetically and/or visually similar to it. Accordingly, it is not sufficient that that element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto.
Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that, for the purpose of establishing that there is an ‘evocation’ of a registered geographical indication, the referring court is required to determine whether, when the average European consumer who is reasonably well informed and reasonably observant and circumspect is confronted with the disputed designation, the image triggered directly in his mind is that of the product whose geographical indication is protected. In making that determination, the referring court, in the absence of (i) any phonetic and/or visual similarity between the disputed designation and the protected geographical indication and (ii) any partial incorporation of that indication in that designation, must take account of the conceptual proximity, if any, between the designation and the indication. Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that, for the purpose of establishing that there is an ‘evocation’ of a registered geographical indication, account is not to be taken either of the context surrounding the disputed element, or, in particular, of the fact that that element is accompanied by an indication of the true origin of the product concerned.
Article 16(c) of Regulation No 110/2008 must be interpreted as meaning that, for the purpose of establishing that there is a ‘false or misleading indication’, as prohibited by that provision, account is not be taken of the context in which the disputed element is used.
Judgment of 21 Jan 2016, C-75/15 (Viiniverla)
Article 16(b) of Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 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.
Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that, in order to assess whether the name ‘Verlados’ constitutes an ‘evocation’ within the meaning of that provision of the protected geographical indication ‘Calvados’ with respect to similar products, the referring court must take into consideration the phonetic and visual relationship between those names and any evidence that may show that such a relationship is not fortuitous, so as to ascertain whether, when the average European consumer, reasonably well informed and reasonably observant and circumspect, is confronted with the name of a product, the image triggered in his mind is that of the product whose geographical indication is protected.
Article 16(b) of Regulation No 110/2008 must be interpreted as meaning that the use of a name classified as an ‘evocation’ within the meaning of that provision of a geographical indication referred to in Annex III to that regulation may not be authorised, even in the absence of any likelihood of confusion.
Judgment of 14 Jul 2011, C-4/10 (Bureau national interprofessionnel du Cognac)
Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 is applicable to the assessment of the validity of the registration of a trade mark containing a geographical indication protected by that regulation, where registration took place before the regulation entered into force.
Articles 23 and 16 of Regulation No 110/2008 must be interpreted as meaning that:
– the competent national authorities must, on the basis of Article 23(1) of Regulation No 110/2008, refuse or invalidate the registration of a mark which contains a protected geographical indication and which is not covered by the temporary derogation provided for in Article 23(2) of that regulation, where the use of that mark would lead to one of the situations referred to in Article 16 thereof;
– a situation such as that referred to in the second question referred for a preliminary ruling – that is to say, the registration of a mark containing a geographical indication, or a term corresponding to that indication and its translation, in respect of spirit drinks which do not meet the specifications set for that indication – falls within the situations referred to in Article 16(a) and (b) of Regulation No 110/2008, without prejudice to the possible application of other rules laid down in Article 16.
Judgment of 16 Jul 1998, C-136/96 (The Scotch Whisky Association)
Article 5 of Council Regulation (EEC) No 1576/89 of 29 May 1989 laying down general rules on the definition, description and presentation of spirit drinks prohibits the inclusion of the generic term 'whisky‘ in the sales description of a spirit drink containing whisky diluted with water, with an alcoholic strength by volume of less than 40%, or the addition of the term 'whisky‘ to the description 'spirit‘ or 'spirit drink‘ applied to such a drink. GulmannWathelet Moitinho de Almeida JannSevón
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