Lib­erty and fra­ter­nity, but never ‘Cham­pagne sor­bet’

The Washington Post Sunday - - TECHNOLOGY & INNOVATION - BY CAITLIN DEWEY caitlin.dewey@wash­post.com More at wash­ing­ton­post.com/ wonkblog

The pow­er­ful trade as­so­ci­a­tion that rep­re­sents cham­pagne mak­ers has sued blog­gers, wa­ter bot­tlers and haute cou­ture fash­ion brands. It warned Ap­ple against call­ing the gold iPhone “cham­pagne” and spent three years mak­ing sure that no one but French pro­duc­ers could snap up cham­pagne-re­lated wine URLs.

But last week, the Comité In­ter­pro­fes­sion­nel du vin de Cham­pagne scored an even more sig­nif­i­cant vic­tory when Europe’s high­est court sug­gested in a non­bind­ing rul­ing that even prod­ucts con­tain­ing the French sparkling wine may not be able to use the cham­pagne name.

The opin­ion from the Euro­pean Court of Jus­tice — on a prod­uct sold by the dis­count gro­cer Aldi as “Cham­pagne sor­bet” — re­in­forces and ex­pands the reach of Euro­pean Union laws that dic­tate that only Por­tuguese dessert wine can be called “port” and that only the Bri­tish­made blue cheese can be called “Stil­ton.”

While the opin­ion is not fi­nal, ex­perts say it fur­thers the Cham­pagne re­gion’s ef­fort to pro­tect its brand.

“Cham­pagne is fight­ing this bat­tle in Europe, and they seem to be win­ning,” said Bernard O’Con­nor, a man­ag­ing part­ner at the Euro­pean law firm Nctm, who spe­cial­izes in trade and agri­cul­ture law. “It seems log­i­cal that they’ll next take the fight to global mar­kets.”

The case in ques­tion in­volved “Cham­pagne sor­bet,” which Aldi sold at a num­ber of its Ger­man stores in 2012. The dessert con­tained 12 per­cent cham­pagne — the real kind, from France — but the Comité claimed that the use of the pro­tected name on a non-wine prod­uct risked cheap­en­ing it.

Un­der long-stand­ing Euro­pean law, hun­dreds of tra­di­tional foods, wines and spir­its that are closely linked to a spe­cific re­gion en­joy spe­cial pro­tec­tions: They’re granted ex­clu­sive use of the re­gional prod­uct name, and legally guarded against a range of in­fringe­ments.

Stil­ton cheese must be pro­duced in the coun­ties of Der­byshire, Le­ices­ter­shire or Not­ting­hamshire in Bri­tain, us­ing pas­teur­ized lo­cal milk. (It can­not, iron­i­cally, be made in the nearby town of Stil­ton.)

Port specif­i­cally de­scribes a for­ti­fied wine pro­duced in Por­tu­gal’s Douro Val­ley.

Feta, Manchego, Ro­que­fort and Asi­ago must come from Greece, Spain, France and Italy, re­spec­tively.

Even in­di­rect or pass­ing uses of pro­tected names are il­le­gal, in many in­stances. Food pro­duc­ers can­not “mis­use, evoke or im­i­tate” a pro­tected name, which has been in­ter­preted in sev­eral na­tional and E.U.-level cases to mean that they can’t use it to la­bel, ad­ver­tise or draw a com­par­i­son to other prod­ucts.

In other words, Miller High Life — the “cham­pagne of beers” — would not fly in Europe.

In this case, how­ever, the prod­uct con­tained the in­gre­di­ent: It was 12 per­cent cham­pagne. Aldi — which has long since stopped sell­ing the dessert in ques­tion — has ar­gued that its prod­uct couldn’t pos­si­bly be said to ex­ploit the cham­pagne brand or mis­lead con­sumers.

“Aldi and Galana in­voked the right to use a cor­rect and non­mis­lead­ing trade de­nom­i­na­tion,” an at­tor­ney for Galana, the sor­bet man­u­fac­turer, said in a 2014 state­ment. “Ac­cord­ing to the de­fen­dants, the use of ‘Cham­pagne’ for a sor­bet con­tain­ing Cham­pagne was jus­ti­fied.”

But the opin­ion re­leased by Ad­vo­cate Gen­eral Manuel Campos Sánchez-Bor­dona took a broad in­ter­pre­ta­tion of name pro­tec­tions, rul­ing that food man­u­fac­tur­ers may only use the name of a pro­tected in­gre­di­ent if the fi­nal prod­uct also cap­tures its “es­sen­tial char­ac­ter­is­tics.” They may also not mar­ket the prod­uct on the ba­sis of its pro­tected in­gre­di­ent.

“The pro­ducer and dis­trib­u­tor [of the cham­pagne sor­bet] hope to evoke in the mind of their con­sumers the qual­ity and pres­tige as­so­ci­ated with this des­ig­na­tion of ori­gin, and ex­tend it to the sor­bet,” he wrote of Aldi’s prod­uct.

The ad­vo­cate gen­eral’s opin­ion is not the end of the mat­ter: A fi­nal judg­ment will be is­sued by the Euro­pean Court of Jus­tice within a few months, and is ex­pected to mir­ror Bor­dona’s po­si­tion.

The case will then re­turn to a Ger­man court, where it be­gan, though the Court of Jus­tice prece­dent will stand through­out Europe.

Even at this stage, how­ever, the judg­ment is a win for pro­tected prod­ucts and sets an im­por­tant prece­dent, ex­perts said.

“If the Euro­pean Court of Jus­tice adopts the opin­ion of the ad­vo­cate gen­eral then pro­tected prod­ucts, even when used as in­gre­di­ents, will con­tinue to en­joy a high level of pro­tec­tion,” said Katie Vick­ery, who heads the food and drink prac­tice at Euro­pean law firm Os­borne Clarke.

That sort of pro­tec­tion is gain­ing trac­tion, even out­side the E.U.

FRAN­COIS NASCIMBENI/AGENCE FRANCE-PRESSE VIA GETTY IM­AGES

Grapes for Koza-Janot are har­vested in 2013 Bux­eil, in the south­ern Cham­pagne re­gion of France. By Euro­pean Union law, to call a sparkling wine cham­pagne, it must be made here.

RALPH ORLOWSKI/GETTY IM­AGES

The Aldi dis­count su­per­mar­ket chain’s “Cham­pagne sor­bet” has re­opened the le­gal dis­course on how the name is used.

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