Consorzio Tutela AcetoBalsamico di Modena v. Balema4 min read

  -Abhay Saxena

Background:

The name ‘AcetoBalsamico di Modena (PGI)’ (balsamic vinegar from Modena, Italy) has been registered since 2009 in the register of protected designations of origin (‘PDO’) and protected geographical indications (‘PGI’).

Balema, a German company, that produces and markets vinegar-based products made from wines from the Baden region (Germany). It uses on the labels of those products the terms ‘balsamico’ and ‘Deutscherbalsamico.

Current Issue:

EU law issues geographical food designations to protect regional specialities in Europe against unlawful appropriation and imitation. Italy has the most protected food designations in the European Union, including Chianti wine and Parma ham.

Consorzio Tutela AcetoBalsamico di Modena, a consortium of producers of products designated by the name ‘AcetoBalsamico di Modena (PGI)’, requested that Balema refrains from using the term ‘balsamico’. In response, Balema appealed to German courts, wanting to know whether the protection of the “AcetoBalsamico di Modena” also applies to the non-geographical terms “Aceto”, “Balsamico” and “AcetoBalsamico.” Germany’s Federal CQourt of Justice referred the case to the ECJ.

The Question in Law:

The question here was “whether the protection of the name AcetoBalsamico di Modena “does/does not extend to the use of non-geographical individual terms” of that name?

The EU Court of Justice (ECJ), located in Luxemburg, rules on Wednesday that the term ‘Balsamico’ is not a food designation protected under the European Union’s food designation rules. The Court also declared that the protection of the name ‘AcetoBalsamico di Modena’ does not extend to the use of the individual non-geographical terms of that name.

The Court emphasised that the registration of the PGI at issue and the protection deriving from it cover the name ‘AcetoBalsamico di Modena’ as a whole, as it is that name that has an undeniable reputation on the national and international market. In contrast, the non-geographical terms of that PGI, that is ‘Aceto’ and ‘balsamico’, and their use in combination and translation cannot benefit from that protection, especially because the term ‘Aceto’ is common and the term ‘balsamico’ is an adjective that is commonly used to refer to a vinegar with a bitter-sweet flavour.

The Court also observed that the terms ‘Aceto’ and ‘balsamico’ appearing in the registered PDOs ‘AcetobalsamicoTradizionale di Modena’ and ‘AcetobalsamicoTradizionale di Reggio Emilia’ without their use infringing the protection conferred on the PGI at issue.

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Approval & Criticism of the Judgement:

The association representing German producers, including of Balsamico vinegar, told that ruling brought long-sought legal certainty after years of legal fights.

On the other hand, The Italian producers told that the ruling was “surprising,” confusing and disappointing, coming from a court that’s been “very favourable” to the protection of local food names. “The decision is unjust”, said Mariangela Grosoli, president of the consortium for the protection of AcetoBalsamico di Modena, said in an emailed statement. He also told that the reality is that many European countries have partly wanted to take possession of the worldwide success achieved by the balsamic vinegar of Modena — this is the only vinegar to be bittersweet and to use the word ‘balsamic’.

Though it’s not the first time the EU judges have weighed in on discords over the use of food names that enjoy bloc-wide protection, called geographical indications. In May they ruled in favour of Spanish makers of Queso Manchego in a fight over the way rivals labelled or named their product to look like the world-famous cheese.

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Conclusion:

The Words ‘Aceto’ and ‘Balsamico’ are commonly used words and thus are free to use by all the producers even though they are registered PDOs of other vinegar producers without infringing on the protected status of “AcetoBalsamico di Modena.”

“AcetoBalsamico di Modena”, as a whole, is protected under the European Union Law while still “Aceto” and “Balsamico” don’t have protected status. Therefore, while the trademark Acetobalsamico di Modena can only be used by producers within a specific geographical area, there are no such restrictions on Acetobalsamico alone.

Thus, the producers of Italian vinegar from the region of Modena lost a challenge at the European Union’s highest court to stop German rivals (Balema) from using parts of their protected name ‘AcetoBalsamico di Modena’.

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