Case C‑44/17

Scotch Whisky Association

v

Michael Klotz

(Request for a preliminary ruling from the Landgericht Hamburg)

(Reference for a preliminary ruling — Protection of geographical indications of spirit drinks — Regulation (EC) No 110/2008 — Article 16(a) to (c) — Annex III — Registered geographical indication ‘Scotch Whisky’ — Whisky produced in Germany and marketed under the designation ‘Glen Buchenbach’)

Summary — Judgment of the Court (Fifth Chamber), 7 June 2018

1. Approximation of laws–Uniform legislation–Definition, description, presentation, labelling and protection of geographical indications of spirit drinks–Regulation No 110/2008–Protection of geographical indications–Protection against direct or indirect commercial use–Criteria for assessment–Need for use in identical or similar form to that of the registered indication

   (European Parliament and Council Regulation No 110/2008, Art. 16(a))

2. Approximation of laws–Uniform legislation–Definition, description, presentation, labelling and protection of geographical indications of spirit drinks–Regulation No 110/2008–Evocation of a protected geographical indication–Meaning–Scope–Assessment by the national court–Criteria

   (European Parliament and Council Regulation No 110/2008, Art. 16(b))

3. Approximation of laws–Uniform legislation–Definition, description, presentation, labelling and protection of geographical indications of spirit drinks–Regulation No 110/2008–Protection of geographical indications–Protection against false or misleading indication–Criteria for assessment–Taking into account the context in which the false or misleading indication is used–Precluded

   (European Parliament and Council Regulation No 110/2008, Art. 16(c))

1.  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.

   (see para. 39, operative part 1)

2.  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.

   (see paras 56, 60, operative part 2)

3.  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.

   (see para. 71, operative part 3)