With a surprising decision published today, the European Court of Justice did not take the side for the protection of the renown Balsamic vinegar of Modena, dealing with the complex issue of the protection of PDOs and PGIs in a formal way.
The Consortium for the protection of Balsamic vinegar of Modena PGI expressed all its disappointment. Its president, Mariangela Grosoli, said: “We consider the Court’s latest decision (about the case opposing the Consortium and Balema, triggered by the German company producing and labeling products made from vinegar from Baden wines and calling them ‘deutscher balsamico’, ndr) totally unfair, starting from the assumption that according to the judges the word ‘balsamic’ could refer to products that are not actually balsamic. Everyone, in Italy and abroad, knows that balsamic candies and syrups, as well as the ‘balsamic’ adjective in wine tasting, do not refer to a sweet and sour flavor at all, recalling instead strong notes and mentholates which our vinegar certainly does not possess. Actually, many European countries want to partially take advantage of the worldwide success of Balsamic Vinegar of Modena – which is the only vinegar to be bittersweet and to use the word Balsamic only because it was attributed many centuries ago by the Este Dukes, who considered it medicinal – and to imitate it in a massive way using its name”.
AN UNCLEAR DECISION
The Court’s decision seems to be therefore unclear. For instance, it does not actually define the word ‘balsamic’ as a generic term within the meaning of the basic regulation, but as a simple translation into Italian of an adjective used to describe a feature of the product. The Court, therefore, does not rule out the possibility that the name Aceto Balsamico di Modena (Balsamic vinegar of Modena) may be protected against possible cases of evocation which, as is well known, may take the form of the simple use of common and descriptive expressions or signs (‘conceptual similarity’).
WHAT COMES NEXT: THE STRUGGLE TO PROTECT BALSAMIC VINEGAR
In the light of this judgment and considering that the adjectives qualifying the characteristics of the product must be used in the language of the country in which it is being marketed, the outcome of the current procedure between the protection Consortium and Balema does not appear to be clear at all. The national courts must therefore assess whether the use of the term ‘balsamico’ in Italian as a sales name and as a noun (and therefore not as an adjective) for vinegar-based products manufactured and marketed in Germany may be sufficient to define those products as evocative of the PGI Aceto Balsamico di Modena. The ruling by the German Federal Court on the specific case will come only in the coming months.
ON THE CONSUMERS’ SIDE
The question of evocation will be raised again, on a case-by-case basis, before national courts. However, this does not alleviate the Consortium’s disappointment: “It is regrettable to note – says the director Federico Desimoni – that the court has deliberately avoided dealing with the issue of evocation and in no way referred to the recent case law relating to the Scoth Whiskey and Queso Manchego, in which the concept of evocation has been related to the use of common terms and signs and the principle of ‘conceptual similarity’. We are not worried about the commercial activity, as other markets such as the American one – in which there has been substantial deregulation for years – teach us that in the end the consumer rewards authentic products. What worries us most is the confusion that competitors could create to mislead consumers.”