Court of appeal recognises well-known nature of DINOSAURUS trademark and declares use of GALLESAUROS sign to be infringing

In its 23 April 2020 judgment the Barcelona Court of Appeal recognised the well-known nature of the DINOSAURUS trademark owned by Galletas Artiach (hereinafter, Artiach) and its infringement by La Flor Burgalesa (hereinafter, Florbú) for using the GALLESAUROS sign applied to biscuits.

Background

In April 2018 Artiach filed a lawsuit against Florbú for infringing the DINOSAURUS trademark and graphic marks consisting of various shapes of different species of dinosaur and alternatively for unfair competition, as well as compensation for damages as a result.

On 3 April 2019 the lawsuit was dismissed by a Barcelona Commercial Court No 8 judgment, against which Artiach filed an appeal.

Decision

On 23 April 2020 the Barcelona Court of Appeal upheld the appeal filed by Artiach and partially revoked the Barcelona Commercial Court No 8 judgment. The Barcelona Court of Appeal declared that the sale of Florbú biscuits under the GALLESAUROS sign constitutes an infringement of the DINOSAURUS trademark and thus ordered Florbú to:

• cease the infringing activity and withdraw from the market the infringing products, packaging, commercial materials and any documents used in the marketing of such products; and
• pay Artiach 1% of the turnover generated by the infringing products in the five years prior to the filing of the lawsuit and until the cessation of their sale and marketing becomes effective.

The legal basis of the Barcelona Court of Appeal judgment can be summarised as follows:

• Contrary to the Barcelona Commercial Court No 8 judgment, the evidence in the file proved that Artiach's DINOSAURUS trademark is generally known by the relevant sector of the public at whom the corresponding products are aimed (ie, purchasers of biscuits for children), which led the court to recognise the well-known nature of the DINOSAURUS trademark.
• The Barcelona Court of Appeal recognised the well-known nature of the DINOSAURUS trademark "with all the conceptual connotation of the sign". Therefore, Artiach had the opportunity to take exclusive advantage of consumers' natural association between the well-known trademark and the dinosaur-shaped biscuits.
• The DINOSAURUS trademark's well-known nature gives it enhanced protection. This enhanced protection means that to conclude the infringement, the concurrence of risk of confusion is not required, but rather that the proximity between the opposing signs generates a link (ie, that the latter mark evokes the previous mark for the average consumer) that may entail, as established under Article 34.2(c) of the Trademark Law:
  • the dilution of the mark's distinctive character;
  • damage to the well-known nature of the mark; or
  • an unfair advantage on the part of the infringer of the distinctive character or well-known nature of the mark.
• The degree of similarity between the GALLESAUROS sign and the well-known DINOSAURUS trademark was enough to generate such a link, given the evident similarity between such signs and their close harmony on a conceptual level.
• The products to which both signs applied shared an identity (ie, biscuits). However, like the DINOSAURUS mark, the GALLESAUROS mark was not used to identify only biscuits, but also applied to biscuits of a certain shape (among the many that can be chosen), such as the one directly linked to the terms 'dinosaurus' and gallesauros' (the dinosaur shape).
• The defendant's use of the GALLESAUROS sign meant that the latter has obtained an unfair advantage and carried out an improper use of the well-known DINOSAURUS trademark.

Therefore, in accordance with Article 34.2(c) of the Trademark Law, the Barcelona Court of Appeal considered that Florbú's sale of the relevant biscuits under the sign GALLESAUROS constituted an infringement of the well-known DINOSAURUS trademark, with all of the consequences derived from said declaration of infringement, including Florbú's obligation to pay damages to Artiach.

Grau & Angulo - Antonia Torrente

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Food and nutrition information on social media: A scoping review protocol

Sigue en: https://era.library.ualberta.ca/items/2c6a9ec6-c05f-466f-806f-60f800045d32/view/a428f2ac-d33c-4a1f-9f99-ea0f3f18bc8e/Food%20and%20nutrition%20information%20on%20social%20media%20-%20A%20scoping%20review%20protocol.pdf

Food and animal safety in Germany (Bird & Bird LLP)

Wolfgang Ernst –   Nicolas Carbonnelle - Christian Lindenthal

wolfgang.ernst@twobirds.com - nicolas.carbonnelle@twobirds.com - christian.lindenthal@twobirds.com

Food safety, certification programmes, animal safety and disease

Livestock legislation

List the main applicable enacted legislation for primary processors of live animals.

Some of the legal instruments listed in our response on the regulatory environment for meat and poultry, and on all other human food, including Regulation (EC) No 178/2002, Regulation (EC) No 852/2004, Directive 2002/99/EC, Regulation (EC) No 853/2004 and Regulation (EC) 882/2004 are relevant, as they form the legal background to primary processor's activities. In addition to these general rules, Directive 98/58/EC concerning the protection of animals kept for farming purposes lays down the minimum standards for the protection of all farmed animals. In addition to this framework, specific directives define requirements for the protection of individual animals, for example, the welfare of pigs is assured by Directive 2008/120/EC while Directive 2007/43/CE lays down minimum rules for the protection of chickens kept for meat production.

Furthermore, processors of live animals are subject to Regulation (EC) No. 1/2005 on the protection of animals during transport and related operations and Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing.

As far as it regards national rules, companies in Germany need to obey the following additional regulations:

• Poultry: the Animal Protection and Animal Farming Regulation (TierSchNutztV), 2009/158/EWG, the Livestock Breeding Act (TierZG), Semen Regulation (SamenV), the Regulation on Breeding Organisations (VO über Zuchtorganisationen), Implementing Regulation (EU) 2017/17, the Animal Protection Act (TierSchG) and Regulation EC No. 589/2008.
• Ruminants: TierGesG, the Livestock Traffic Regulation (ViehVerkV), the Regulation on Protection against Swine Fever and African Swine Fever and the Pig Farming Hygiene Regulation (SchHaltHygV).
• Pork: TierSchNutztV, TierZG, SamenV, VO über Zuchtorganisationen, Implementing Regulation (EC) 2017/17, TierSchG, Regulation EC No. 589/2008, the Regulation on the Performance Inspections and the Determination of the Genetic Value of Pigs.

Food safety regime

Describe food safety regulations for meat and poultry products, and all other food products in your jurisdiction.

The food safety regulations are mainly based on Regulations (EC) No. 178/2002, 852/2004 and 853/2004 and their implementing measures.

We refer to our response on the regulatory environment for meat and poultry, and on all other human food,and note that Regulation (EC) No 178/2002 essentially prohibits the placing on the market of foods that are injurious health or otherwise unfit for consumption. On this basis, it establishes several rules covering all stages of food and feed production and distribution. These obligations must be followed by all businesses intervening at any stage of the food chain; they concern the traceability of food, feed and food-producing animals. The Regulation also prescribes an obligation to withdraw food or feed from the market, or recall products already supplied, if these are considered to be harmful to health.

Safety enforcement

What enforcement can take place in relation to food safety? What penalties may apply?

Serious violations are liable to criminal prosecution, which may result in the criminal liability of both legal persons and natural persons, the latter including the possibility of arrest and jail.

In practice, however, the most common method of enforcement in food supply chain safety is through administrative procedures. These procedures are handled by the Federal Agency for the Safety of the Food Chain (FASFC). The measures that FASFC can take include the seizure of goods and suspension or revocation of authorisations granted to an undertaking active in the agricultural sector (see, in particular, section 138 regulation (EU) 2017/625 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products and sections 7, 16-17 on General administrative provision on principles for carrying out official controls on compliance with food law, animal by-products law, wine law, feed law and tobacco law).

Product certification

Describe any certification programmes and regulations for genetically modified foods and organic foods.

Genetically modified (GM) foods have been subject to a specific regulatory framework since 2004. The EU framework now consists of several regulations of the Council and the European Parliament, regulations of the Commission and directives. Before GM foods may be placed on the market, these foods need to be approved based on a double safety assessment. First, they need an authorisation for the deliberate release into the environment according to the criteria laid down in Directive 2001/18, and second an authorisation for use in food or feed, or both, according to the criteria laid down in Regulation 1829/2003.

Each application for the introduction of a new GM food to the market is reviewed on a case-by-case basis, including a detailed consideration of the potential for toxic, nutritional and allergenic effects, by the European Food Safety Authority. Currently, a number of GM varieties are allowed in the EU for the following crops: maize, soybean, rapeseed, cotton, sugar beet and potato. To date, no genetically modified animals are allowed in the European Union. Of note, to date only two commercial genetically modified organisms (GMO) crops have been authorised for commercial cultivation in the EU, namely MON 810 maize and the potato ‘Amflora’. A number of member states has prohibited the cultivation of MON 810. As regards Germany, no genetically modified plants have been commercially cultivated since 2012. (Bundesregierung.de).

In relation to GM foods, it is relevant to note that in its 25 July 2018 decision the Court of Justice of the European Union held that all organisms subject to genome-editing techniques, including the use of Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR) and other techniques or methods of mutagenesis, fall within the definition of GMOs. This thus expands the application of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of GMOs.

Organic products are notably subject to compliance with the requirements defined under Regulation (EC) No. 834/2007 on organic production and labelling of organic products (which will be replaced, as of 1 January 2021, by Regulation (EU) No. 2018/848). The legislation on organic production defines a framework in which the protection of the environment and of biodiversity is promoted and the interests of consumers are protected by means of clear and reliable information. The rules on organic production apply along the whole product life cycle, and entail – among others – the prohibition of the use of GMOs, a prohibition for the use of ionising radiation, limits in the use of artificial fertilisers, herbicides and pesticides, prohibition of the use of hormones and restriction of the use of antibiotics.

Food labelling requirements

What are the food labelling requirements, including the applicable enacted legislation, enforcement and penalties?

The main EU set of rules relating to food labelling is Regulation (EU) No 1169/2011 on the provision of food information to consumers (FIC). This regulation provides general rules on food and nutrition labelling, including the rules on the mandatory nutrition declaration that has been in force since 13 December 2016. This regulation provides that in the case of prepacked foods, the following food information must appear directly on the package or on a label attached to the package:

• the name of the food;
• the list of ingredients;
• an indication of the allergens present in the product, even if in an altered form;
• the quantity of certain ingredients or categories of ingredients (QUID);
• the net quantity of the food;
• the date of minimum durability or the ‘use by’ date;
• any special storage conditions and conditions of use;
• the name or business name and address of the FBO responsible for placing the food on the market;
• the country of origin or place of provenance in certain cases;
• instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions;
• with respect to beverages containing more than 1.2 per cent by volume of alcohol, the actual alcoholic strength by volume; and
• a nutrition declaration.

All mandatory food information must be permanently affixed in a clearly visible and legible position on the product. They must not be obscured or separated by other information, nor distracted from it. In addition to that, mandatory information must be printed in a legally prescribed size, which ensures their readability.

Specific categories of products are subject to more detailed requirements. Examples include chocolate and honey. Further requirements are laid down in other legislation such as eg EU Regulation (EC) No. 1924/2006 on nutrition and health claims. As far as it concerns the implementation of the EU regulations into national law, German law is supplemented by its Food Information Implementation Ordinance (LMIDV). This regulates, for example, that foodstuffs marketed in Germany must always be labelled in the German language.

Enforcement and penalties are defined at national level. They can also be found in section 6 of the LMIDV, which refers to special sections in the Food and Feed Code (LFGB, sections 59 and 60). The sanctions attached to non-compliance with labelling requirement are criminal sanctions (imprisonment and fines). They range from a simple fine to imprisonment for up to one year.

Food animal legislation

List the main applicable enacted legislation regarding health of food animals, including transportation and disease outbreak and management.

Legislation regarding the health of food animals is both European and domestic.

Legislation, at the European level, includes:

• Directive (EC) 64/432 on animal health problems affecting intra-Community trade in bovine animals and swine;
• Directive (EC) 91/68 on animal health conditions governing intra-Community trade in ovine and caprine animals;
• Regulation (EC) No. 1/2005 on the protection of animals during transport applies to the transport of live vertebrate animals in connection with an economic activity; and
• Regulation (EC) No. 21/2004 establishing a system for the identification and registration of ovine and caprine animals.

At the national level, Germany has enacted a lot of additional rules as far as the health of food animals is concerned. Please see the response on the regulatory environment for meat and poultry for a detailed list. As far as it concerns transportation, the law of the EU, namely Regulation (EC) No. 1/2005 on the protection of animals during transport and related operations needs to be obeyed.

Animal movement restrictions

What are the restrictions on the movement of animals within your country?

In accordance with Regulation (EC) No. 1/2005, transporters of animals that are transported over 65 km in connection with an economic activity are required to hold a transporter admission. For all journeys exceeding 65 km, all drivers of road vehicles carrying domestic equine, cattle, sheep, goats, poultry and pigs must have a certificate of professional competence issued following comprehensive training in the field of animals during transport and sanctioned by the successful completion of an examination by an independent body authorised by the competent authorities. In order to obtain this authorisation, the applicant must demonstrate in particular that he or she has sufficient and appropriate personnel, equipment and operational procedures. These authorisations are valid for five years and follow a harmonised European format. They are recorded in a publicly accessible electronic database.

For long journeys (more than eight hours), the means of transport must also have been inspected and approval must have been issued. These approvals are valid for five years. They have a harmonised European format and are stored in an electronic database accessible to the authorities of all member states.

Slaughter legislation

Where would one find the regulations related to livestock slaughtering?

Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing lays down rules for the killing of animals bred or kept for the production of food, wool, skin, fur or other products, and the killing of animals for depopulation. The Regulation introduces a series of new, directly applicable operational requirements, and requirements for the construction, layout and equipment of slaughterhouses.

The Regulation also permits EU member states to maintain existing national rules in force at the time the Regulation came into force, where they provide greater protection for animals at the time of killing than those in the regulation. The Regulation provides a derogation to allow religious slaughter without prior stunning.

Germany has made use of the opportunity to maintain existing rules in force, as they provide more protection for the animals at the time of killing than EU regulations: For example, article 3 of Regulation (EC) No. 1099/2099 states that it is sufficient that the animals are spared any avoidable pain, stress and suffering during the killing process whereas the German regulation additionally requires that animals must be so restrained that they are not caused more than unavoidable excitement or harm (section 3 of the TierSchlV).

The relevant German laws are the following ones:

• the Animal Welfare Act;
• the General Administrative Regulation for the Implementation of the Animal Welfare Act;
• the Regulation on the protection of animals with regard to slaughter or killing and implementing Regulation (EC) No. 1099/2009; and
• the Animal Welfare Animal Husbandry Ordinance.

Pest control requirements

Outline the regulatory regime for pesticides in your jurisdiction.

Biocides control viruses, bacteria, fungi, insects and animals. Safeguards are crucial to ensure safety to people, the environment or animals.

At European level, two regulatory schemes concern pesticides:

• Biocidal Product Regulation (BPR) (Regulation (EU) No. 528/2012) (BPR), and its supporting legislation such as the Biocides Review Regulation (Regulation (EU) No. 1062/2014). The BPR cover a diverse group of products, including disinfectants, pest control products and preservatives.
• Regulation (EC) No. 1107/2009 provides rules concerning the placing of plant protection products on the market.

In Germany, regional authorities have also adopted additional measures in order to achieve the sustainable use of pesticides. This includes the implementation of the guideline 2009/127/EG into national law (the Equipment and Product Safety Act) as well as the establishment of their own action plans for the use of pesticides. This Directive aims at reducing the risks and impacts of pesticide use on human and animal health and the environment and promoting the use of integrated pest management and of alternative approaches or techniques such as non-chemical alternatives to pesticides.

Law stated date

Correct on

Give the date on which the information above is accurate.

18 December 2019.

The protection of wine geographical indications: legislative efforts since Pliny by Emmanuel Gillet

                                               

On February 26, 2020, the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications entered into force (wipo.int). Recently, a Shanghai court condemned an infringer to a suspended prison sentence and a fine for counterfeiting Bordeaux wines. This decision follows an investigation and the seizure, in March 2019, of nearly 10,000 bottles at the wine fair in Chengdu (Sichuan). On June 30, 2020, the Italian authorities, with the help of Europol, dismantled a network that produced counterfeit wine for online markets. The method consisted of filling high-quality bottles with lower quality wines and marketing them, online and at a high price, like authentic bottles (Europol.eu, 2020-06-30). The news on the protection of wine geographical indications is abundant. History shows that it has always been the case.

In 1849, Russia consumed three million bottles of Champagne. In contrast, it only imported one million: counterfeit labels and corks, “bottles of [C]hampagne carefully preserved and filled with ordinary wines from the regions of Russia” (Émile et Marie Ducoudray, « Vins et Champagne français en Russie dans la première moitié du XIXe siècle, in Russes, slaves et soviétiques, Mélanges Roger Portal, Sorbonne, Paris, 1992, pp. 343-357, spéc. p. 350). Nowadays, stakeholders involved in the fight against counterfeit wines and spirits have no choice but to secure their assets in every economic zone. By way of illustration, in October 2019, the Côtes de Provence GI became “the first French wine appellation to be recognized by the Russian Federation” (vitisphere.com, 2020-01-23).

However, it is the vast Chinese market that is under particular scrutiny. This brings us to recall that China and the European Union signed an agreement on November 6, 2019, on the reciprocal recognition and protection of one hundred geographical indications on both sides (ec.europa.eu, 2019-11-06). In this regard, it should be noted that the case which took place before the Shanghai judge (briefly mentioned above) started several months before the signing of this Sino-European agreement. However, by retaining jurisdiction and imposing a sentence of imprisonment, the court sent a new warning to the fraudsters. In 2018, similar penalties were pronounced by Chinese courts for other counterfeit Bordeaux wines (vitisphere.com, 2018-09-14). For years, it has been reiterated that it was not enough to pass the law, that the Chinese administration also needed to give itself the means necessary to enforce it. In just a few years, the Chinese authorities have made considerable progress. However, the law must also be brought to the public’s attention.

It’s not a new problem. In 1843, the French parliament asked a report on the counterfeiting of wines and the means of repressing it:

“Undoubtedly, it would be advantageous to moralize our trade inside and outside, to prevent the wines of inferior qualities from taking the name and the place of the vintages of superior qualities, and to depreciate their market value, by bringing real damage to the justly deserved reputations” (Rapport de la commission présidée par le Marquis de la Grange, 12 juin 1843, Annales du Parlement français, Session de 1844, Chambre des députés, Tome sixième, 1845)

Furthermore, the author of the report supplemented his speech with multiple illustrations concerning the imitation of foreign wines, the cutting of wines, and other falsifications. A fraud which, for the previous 13 years, had made the City of Paris and the State Tax department lose respectively 20 and 15 million francs (which would amount to approximately 50 and 38 million of our euros). The problem was also sanitary since bad quality wines could contain “disgusting residues, impregnated with lead salts, and often animal materials which are dangerous to the health of consumer” (id.). The penalties were considered too low, and the means of supervision insufficient. This report led to a law which, despite the axiom nemo censetur ignorare legem, seemed so little known to fraudsters that a lawyer, Victor Emion, published, in 1857, a practical guide for sellers and buyers (Victor Emion, Des délits et des peines, en matière de fraudes commerciales, denrées alimentaires et boissons : guide pratique du vendeur et de l’acheteur, Paris, 1857). The author reports, among other examples, that on May 18, 1854, the Paris court convicted, in criminal proceedings, a merchant who sold as a Château-Latour 1848 a wine of much less prestigious origin:

“Thus, Ch. deceived the purchaser on the very substance and, consequently, on the nature of the goods, object of the contract; that the fact of deception and the fraudulent intention constitute the elements of the offense provided for and punished by art. 423 of the Penal Code (Paris, 18 mai 1854 : Gazette des Tribunaux du 19 mai 1854; Victor Emion, Des délits et des peines, en matière de fraudes commerciales, denrées alimentaires et boissons : guide pratique du vendeur et de l’acheteur, Paris, 1857, para. 44, p. 52).

Nearly thirty years after the law was in force, another lawyer, Albert Chiché, published, for the same reason, a guide for the use of traders who were prosecuted before the criminal courts for falsifying drinks or foods (Albert Chiché, Petit Manuel à l’usage des commerçants poursuivis devant le Tribunal de police correctionnelle pour falsification de boissons ou de substances alimentaires ou pour tous autres délits de même nature, Imprimeries réunies, 1885). However, it seems difficult to imagine that nemo auditur… could have been invoked in 19th century France, when the abundant press, both general and special, served as a channel for the dissemination of new laws.

Two centuries later, at the time of the Internet and WeChat, the question of the diffusion of the law does not arise. However, counterfeiting continues.

“Pliny tells us that in Rome, we already distrusted certain wines from Narbonne Gaul. Fraud is as old as commerce itself. The legislator of all times and of all countries was in need to impose severe penalties on the falsification of drinks” (Maurice Savignon, Le mouillage des vins aux yeux de la loi, de la doctrine et de la jurisprudence. Examen critique du nouveau projet de loi, 1894).

Regarding “harsh penalties”, authorities should finally show determination to apply existing penalities. Counterfeiting continues on a large scale because the profitability of counterfeiting is greater than the legal risk. The lack of enforcement of penalties annihilates the deterrent power of the law and encourages the pursuit of counterfeiting.

[Source: https://www.iptwins.com/en/2020/07/03/the-protection-of-wine-geographical-indications-legislative-efforts-since-pliny/