IP case law Court of Justice

Judgment of 10 Nov 1992, C-3/91 (Exportur)



Judgment of the Court of 10 November 1992. - Exportur SA v LOR SA and Confiserie du Tech SA. - Reference for a preliminary ruling: Cour d'appel de Montpellier - France. - Franco-Spanish Convention on the protection of indications of provenance and designations of origin - Compatibility with the rules on the free movement of goods. - Case C-3/91.

European Court reports 1992 Page I-05529
Swedish special edition Page I-00159
Finnish special edition Page I-00161


Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Community law - Primacy - Convention concluded between a Member State and a State subsequently acceding to the Community - Provisions incompatible with the Treaty - Not applicable from the date of accession

2. Free movement of goods - Industrial and commercial property - Protection of geographical names - Scope

(EEC Treaty, Art. 36)

3. Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Reservation to national products of user of names previously used for products of any provenance whatever - Not permissible

(EEC Treaty, Arts 30 and 36)

4. Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Prohibition on imports as a result of a convention between two Member States on the protection of indications of provenance and designations of origin - Justification - Protection of industrial and commercial property - Condition - Absence of transformation, in the State of origin, of indications of provenance into generic names

(EEC Treaty, Arts 30 and 36)

Summary

1. The provisions of a convention concluded after 1 January 1958 by a Member State with another State cannot, from the accession of the latter State to the European Economic Community, apply in relations between those States if they are found to be contrary to the rules of the Treaty.

2. The protection of geographical names extends to names, commonly known as indications of provenance, used for products which cannot be shown to derive a particular flavour from the land and to have been produced in accordance with quality requirements and manufacturing standards laid down by an act of public authority. Such names may enjoy, just as do designations of origin, a high reputation among consumers and constitute for producers established in the places to which they refer an essential means of attracting custom and are therefore entitled to protection.

3. A Member State cannot, without infringing the provisions of Article 30, use a legislative measure to reserve to domestic products names which have been used to indicate products of any provenance whatever by requiring the undertakings of other Member States to use names unknown to or less highly prized by the public. By reason of its discriminatory nature, such legislation is not covered by the derogation provided for in Article 36.

4. Rules enacted by a bilateral convention between Member States on the protection of indications of provenance and designations of origin fall within the scope of Article 30 of the Treaty where, as in the case of the rules of the Franco-Spanish Convention of 27 June 1973, they result in prohibiting undertakings established in the State of exportation from using in the State of importation protected names the use of which is denied to them by their national law and in prohibiting undertakings established in any other of the Member States from using the names in question in the two contracting States.

However, in so far as those prohibitions do not apply to names which, either at the time of entry into force of the Convention or subsequently, have become generic in the State of origin, they are justified because they fall within the scope of the derogations authorized by Article 36 on grounds of the protection of industrial and commercial property. Their objective, which is to prevent producers of a Member State from using the geographical names of another Member State of the Community, thereby taking advantage of the reputation attaching to the products of the undertakings established in the regions or places indicated by those names, is intended to ensure fair competition.

Furthermore, those prohibitions do not conflict with the obligation on the part of the Member States to have due regard for fair and traditional user in the other Member States, since that obligation cannot work to the advantage of operators established in a State who use names referring to regions or places in another State.

Parties

In Case C-3/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d' Appel, Montpellier (France), for a preliminary ruling in the proceedings pending before that court between

Exportur SA

and

LOR SA and Confiserie du Tech,

on the interpretation of Articles 30, 34 and 36 of the Treaty for the purpose of determining the compatibility with those provisions of the Convention between the French Republic and the Spanish State of 27 June 1973 on the protection of designations of origin, indications of provenance and names of certain products,

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodr


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