The use of a Protected designation of origin (PDO) as part of the name under which is sold a foodstuff that does not correspond to the product specifications for that PDO but contains an ingredient which does correspond to those specifications – like “Champagner Sorbet” containing 12% champagne - cannot be regarded, in itself, as an unfair use against which PDOs are protected in all circumstances: it is for the national courts to determine, in the light of the particular circumstances of each individual case, whether such use is intended to take unfair advantage of the reputation of a PDO, this is the case when that foodstuff does not have, as one of its essential characteristics, a taste attributable primarily to the presence of that ingredient in the composition of the foodstuff.
CJEU press release: “A sorbet may be sold under the name ‘Champagner Sorbet’ if it has, as one of its
essential characteristics, a taste attributable primarily to champagne. If that is the case, that product name does not take undue advantage of the protected designation of origin ‘Champagne’ […].
By today’s judgment, the Court finds that the unlawful exploitation of the reputation of a PDO entails use of the PDO that seeks to take undue advantage of its reputation. It is true that the use of the name ‘Champagner Sorbet’ to refer to a sorbet containing champagne is liable to extend to that product the reputation of the PDO ‘Champagne’, which conveys an image of quality and prestige, and therefore to take advantage of that reputation.
However, such use of the name ‘Champagner Sorbet’ does not take undue advantage (and therefore does not exploit the reputation) of the PDO ‘Champagne’ if the product concerned has, as one of its essential characteristics, a taste that is primarily attributable to champagne. It is for the national court to determine, in the light of the evidence before it, whether that is the case. The Court observes in that regard that the quantity of champagne in the sorbet is a significant but not, in itself, sufficient factor.
Furthermore, the Court finds that if the sorbet in question did not have, as an essential characteristic, a taste primarily attributable to champagne, it would equally be possible to conclude that the name ‘Champagner Sorbet’ on the inner or outer packaging of the product constituted a false or misleading indication and was therefore unlawful."