The reproduction of the shape or appearance of a product protected by a PDO is prohibited if such reproduction may mislead the consumer as to the true origin of the product.
This is the decision of the Court of Justice of the European Union (hereafter the EU Court) ruling in case C490/19 concerning the request for a preliminary ruling submitted by the Cour de Cassation (Court of Cassation, France) in the proceedings between the Syndicat interprofessionnel de défense du fromage Morbier (Association for the Protection of Morbier Cheese, hereinafter ‘the Syndicat’) and Société Fromagère du Livradois SAS, concerning, among other questions, an infringement of the protected designation of origin (PDO) ‘Morbier’.
In particular, Syndicat brought an action against Société Fromagère du Livradois, accusing it of damaging the protected designation and committed acts of unfair and parasitic competition, by producing and marketing a cheese which has the visual appearance of the product covered by the PDO ‘Morbier’, in order to create confusion with that product and to benefit from the reputation of the image associated with it.
The applications of the complaining party, however, were dismissed by a judgment also confirmed by the Court of Appeal of Paris.
The Syndicat addressed the judge of merit, who decided indeed to stay the proceedings and to refer to the EU Court the question whether the reproduction of the physical characteristics of a product protected by a PDO may constitute a practice that could mislead the consumer as to the true origin of the product.
The Court, reiterating that the main purpose of the system for the protection of PDO and PGI is to ensure consumers that agricultural products, benefiting from a registered designation, because of their origin from a specific geographical area, have certain special characteristics and, therefore, offer a guarantee of quality due to their geographical origin, pointed out that PDOs are therefore protected by the designation of a product which presents certain qualities or characteristics.
Consequently, PDO and the product protected by it are closely linked.
The EU Court thus declared that Article 13(1)(d) of Regulation No 510/2006 and Article 13(1)(d) of Regulation No 1151/2012 – which govern respectively the protection schemes for designations of origin and the quality of products – must be interpreted as prohibiting the reproduction of the shape or appearance characterizing a product covered by a registered name, where such reproduction may lead the consumer to believe that the product in question is the covered by that registered name.