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Sour decision for the “Aceto Balsamico di Modena (PGI)”
On December 4, 2019 a famous decision by the European Court of Justice in the case C 432/18 has confirmed that the terms “aceto” and “balsamico” do not enjoy specific protection and can therefore be used to identify general food products.
«Aceto Balsamico di Modena» Protected Geographic Indication (PGI) under EU law and under Italian law, which can be used only by specific producers in the area of Modena, provided that they comply with the specific requirements set by Consorzio Aceto Balsamico di Modena for the production of this delicious and unique condiment.
The decision of the Court of Justice relates to a case pending before the German third instance court and launched by German company Balema against Consorzio Aceto Balsamico di Modena (“CABM”) and concerning the right of Balema to produce and distribute vinegar-based products denominated «Balsamico» and «Deutscher balsamico».
After CABM had sent a cease and desist letter against Balema, requesting cessation to use the word “balsamico” on their products, Balema filed a case with the local German court aimed at ascertain the non-infringement of the Italian GI and therefore its right to use these denominations.
Interestingly, Balema saw its claim rejected in first instance, while upheld in second instance. CABM then filed a third-instance case, during which the court asked the EU Court of Justice to provide its interpretation of the relevant EU regulation, and in particular of the following question:
“Does the protection granted by the «Aceto Balsamico di Modena» PGI cover also any single terms of such denomination (i.e. aceto, balsamico, Modena)?”
It shall be noted that in the past, Germany, France and Greece had opposed the GI protection of «Aceto Balsamico di Modena».
In particular, Greece and Germany were concerned that such protection might have harmed:
use of denomination Balsamessig/Aceto balsamico for products on German market since many years;
use of products names as “balsamico” or “balsamon” and already sold on the Greek market.
The EU Commission – after requesting an opinion to the Scientific Committee for Origin Denominations - had rejected those oppositions on the grounds that
“the name «Aceto Balsamico di Modena» has an undeniable reputation on the national and international market, as demonstrated by its frequent use in numerous recipes in many Member States, and the many references to it on the internet, in the press and other media.
«Aceto Balsamico di Modena» therefore meets the inherent condition for the product having a specific reputation linked to that name. The committee noted the fact that these products have co-existed on the market for hundreds of years.
It also noted that «Aceto Balsamico di Modena» and «Aceto balsamico tradizionale di Modena» are different as regards their characteristics, customer base, usage, method of distribution, presentation and price, thereby ensuring the fair treatment of the producers in question and not misleading consumers.”
Implicitly, the Court had already stated that the scope of the protection – and the core matter at issue – was the GI as a whole, rather than protection of each single component.
 | The EU Court of Justice – in its final decision - considered that:
Therefore, use of Italian words “aceto” and “balsamico” is not restricted. |
HFG Law&Intellectual Property
