Case T-341/09

Consejo Regulador de la Denominación de Origen Txakoli de Álava and Others

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Application for Community collective verbal mark TXAKOLI – Absolute grounds for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009 – Article 66(2) of Regulation No 207/2009 – Lack of distinctive character – Article 7(1)(b) of Regulation No 207/2009)

Summary of the Judgment

1.      Agriculture – Common organisation of the markets – Wine – Designation and presentation of wines – Regulations No 1493/1999 and No 753/2002 – Distinction between geographical indications and other traditional designations

(Council Regulation No 1493/1999, Art. 47(2)(e); Commission Regulation No 753/2002, Art. 23)

2.      Community trade mark – Community collective marks – Signs or indications which may serve to designate the geographical origin of goods and services – Exception – Restrictive interpretation

(Council Regulations No 207/2009, Arts 7(1)(c) and 66(2), and No 1234/2007)

1.      The distinction between geographical indications, in a broad sense, and traditional complementary terms was clearly set out in Regulation No 1493/1999 on the common organisation of the market in wine, the basic regulation before Regulation No 1234/2007, establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), and on which Regulation No 753/2002 laying down certain rules for applying Regulation No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products was based, for it stated at Article 47(2)(e) that the rules relating to the description, designation and presentation of certain products covered by that regulation, and the protection of certain particulars and terms, included, in particular, the objectives governing the use of geographical indications and traditional terms.

Among the latter, Article 23 of Regulation No 753/2002 – repealed by Regulation No 607/2009 laying down certain detailed rules for the implementation of Regulation No 479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products – defined other traditional terms as ‘additional terms traditionally used in producer Member States to designate, in the case of wines (table wines with geographical indications and quality wines produced in a specified region), the production or ageing method or the quality, colour, type of place, or a particular event linked to the history of the wine concerned and defined in a Member State’s legislation for the purposes of designating the wines concerned originating in its territory’. The other traditional terms within the meaning of Regulation No 753/2002 were, consequently, terms designating certain characteristic features of wine, the place or production or its history and not its geographical provenance.

(see paras 27-28)

2.      According to Article 66(2) of Regulation No 207/2009 on the Community trade mark, notwithstanding Article 7(1)(c), signs or indications which may serve to designate the geographical origin of goods and services may constitute collective Community marks within the meaning of Article 7(1). Article 66(2), which provides an exception to the ground for refusal under Article 7(1)(c), must not be interpreted broadly by including the signs comprising a geographical indication solely on the substance.

As regards the very specific wine market, in the context of assessing an application for registration lodged with the Office for Harmonisation in the Internal Market (Trade Marks and Designs), to accept that the word applied for designates or may serve to designate, in normal usage from the point of view of the relevant public, a country as the geographical provenance for the wine at issue would amount to encroaching on the powers of the authorities intervening in the procedures intended to create new designations of origin or protected geographical indications containing that word or to increase the number of designations linked to those terms.

It is, however, for those authorities to determine, within the framework of their discretion and after assessing all the relevant circumstances, whether a word must be protected as a designation of geographic origin of a product, and in accordance with the specific procedure laid down in that respect by Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) which includes, in particular, specific rights for interested persons and includes the possibility of challenging the final decision of the Commission in that respect before the Union judicature.

(see paras 35-37)