Case C-44/17 The Scotch Whisky Association. Preliminary questions. Landgericht Hamburg (Germany). Opinion A-G Saugmandsgaard Øe
Geographical Indications. From the press release: "Advocate General Saugmandsgaard Øe issues his opinion on the interpretation of EU law provisions relating to geographical indications for spirit drinks in the context of a dispute concerning a German whisky named ‘Glen Buchenbach’ .
First, the Advocate General states that a registered geographical indication is only subject to prohibited ‘indirect use’ if the disputed denomination is identical or phonetically and/or visually similar to the indication in question. Therefore, it is not sufficient that that designation is liable to evoke in the relevant public some kind of association of ideas with the indication or the relevant geographical area.
Second, the Advocate General considers that the disputed denomination does not necessarily require phonetic and visual similarity with the registered geographic indication in order for it to constitute an unlawful ‘evocation’ of that indication. However, it is not sufficient that the designation is liable to evoke in the relevant public some kind of association of ideas with the protected indication or the relevant geographical area. In the absence of phonetic and visual similarity, it is necessary to take account of the conceptual proximity existing, if it be the case, between the indication in question and the disputed designation, in so far as that proximity is of such a nature as to lead the consumer to have in mind, as reference image, the product whose indication is protected. It is therefore solely for the Landgericht Hamburg to determine whether, in the present case, when the average European consumer is confronted with a comparable product bearing the designation ‘Glen’, the image triggered directly in his mind is that of ‘Scotch Whisky’.
Third, the Advocate General states that for the purposes of establishing the existence of a ‘false or misleading indication liable to convey a false impression as to [the] origin’ of the relevant product, it is also not necessary to take account of additional information found alongside the sign at issue in the description, presentation or labelling of the product, in particular with regard to its true origin."
Read the press release here.