How Brexit will change the food industry (Fourth Brexit Blog)

Brexit – How Brexit will change the food industry

In our fourth Brexit Blog, we will focus on the food industry, which causes one of the biggest trade flows between the United Kingdom (UK) and the ‘mainland’ of the EU (EU). We will discuss some of the consequences of Brexit, which can be already felt, so that food business operators know what to expect.

The UK currently imports 30% of the food it consumes from the EU, but all of that will be impacted by Brexit. Also, considerate amounts of products (e.g. meat, dairy and other agricultural products) are shipped from the UK to the EU. In total about EUR 46 billion of food products exchange the EU/UK borders annually. The food industry will therefore (and for other reasons) be one of the industries most affected by Brexit.

Financial consequences

As the UK is currently a member of the customs union of the EU, generally custom duties, tariffs or quota are prohibited on the trade of food within the (current) EU-market. With the UK leaving the customs union (under a no deal Brexit), this prohibition will no longer apply to the EU/UK-trade and other rules come into force, the World Trade Organization-rules. These WTO-rules, in short, prescribe that a country cannot discriminate between trade partners (unless a bilateral trade agreement is concluded). As all trade partners must face the same trade tariffs under the WTO-rules, the currently applicable tariffs for ‘third countries’ will apply to the EU/UK trade until a trade agreement is concluded. These tariffs (from the UK to EU) are especially high for food products, as they vary from 12 % for fish products, to 23,6 % on sugar and confectionary, to 35% on dairy products, to even higher for specific products (up to 87 % (!) for frozen beef).

Obviously it is possible to conclude a free trade agreement between the EU and the UK, but generally trade agreements can easily take up to 5 years to conclude (provided both countries have enough trade negotiators). As the UK did not (and is not allowed to) negotiate a trade agreement since their accession to the EU – and therefore probably won’t be able to act swiftly, a full free trade agreement will not be (expected to be) in force any time soon. EU food operators will therefore have to take into account that food products, such as livestock, ingredients and actual groceries will face considerable trade tariffs in case of a no-deal Brexit. Adding to these tariffs will be further pricing issues such as amending VAT-regimes (for exporting to a third country) as well as price instability caused by a turbulent GBP-EUR rate the coming months.

Logistical consequences

Another impact for food companies relate to the logistical structure of the food chain. Billions worth of food products cross the Channel each year, mostly at Calais-Dover or via the port of Rotterdam. At these border crossings currently no border control points are operational, nor is much paperwork required to cross. After Brexit however, this may radically change, with severe consequences for supply chains and (further) administrative burdens.

Where traffic currently flows easily on and of the ferries at Calais and Rotterdam, after Brexit trucks will have to fulfill certain requirements in order to be able to cross the Channel. The amount of paperwork will increase and also product checks, such as veterinary checks, will be put in place. This will increase the time it takes to cross the border to up to 45 minutes per truck. However, as not all trucks can be checked at the same time, this will lead to massive congestion on the roads to the British ports. In the UK tests are run with scenarios where traffic jams of up to more than 20 kilometers lead up to the port of Dover. Specific food products such as certain fruits and vegetables will be checked and live animals and animal products will have to be imported into the EU through designated Border Inspection Posts where they are checked by veterinaries. It can therefore take quite a bit longer for products to reach a location in the EU or the UK.

These measures lead to massive logistical difficulties, especially where perishable goods are involved or where supply chains are very tight. Also, according to government officials the government expects that in the first weeks after a no-deal Brexit the delays will lead to a diminishing of the flow of imports to a mere 13% of current imports (with supply deficits/empty shelves as a consequence). For this reason many (UK) companies in the food industry have been stockpiling (at the request of the British Department of Health) to be able to survive the first months after Brexit (no matter what scenario is chosen by the politicians).

Besides the time delays, further administrative burdens will apply. For the import or export of food products from and to the UK, additional administrative actions are required. First of all, filings will have to be made with the relevant customs offices and possible duties must be paid. Also – depending on the arrangement post Brexit – additional controls or (origin) certificates may be required before a product can cross the Channel. This might require further administrative custom skills from employees, skills that currently may not (and do not have to) be present with many food business operators.

Regulatory consequences

As if the financial and logistical consequences are not enough, several regulatory consequences that might be of importance to food business operators can also occur. Obviously, UK producers will have to ensure that their product complies with EU-labelling law (including the indication of a EU-representative/importer that is responsible for the food and food information). As the UK will adopt its own rules, the labels may have different requirements for EU-products compared to for UK-products. As a consequence, UK-products, for example, can no longer be sold in Ireland without amending the label. Topics for which the post Brexit situation may require further amendments to the product and/or the administration are origin indications, traceability, hygiene, front-of-pack schemes, biological products and specific products such as honey, meat, spirits etc.

The future requirements of labelling for food products in the UK are uncertain, but the UK has historically been in favor of mandatory ‘traffic light’ labelling front-of-pack, indicating nutritional values of products. Such indications are not mandatory (and in some cases not allowed) under current EU-legislation, so this would already be a big difference. Also, in the UK pleas are made to introduce new health warnings and animal welfare indications. All these measures may potentially widen the gap between EU-requirements and UK-requirements and as such hinder fluent trade between the two markets.

What kind of Brexit will be likely, is – with seven weeks to go – still unclear. This will prove quite the challenge for (amongst others) food business operators to efficiently prepare for (the right type of) Brexit. One thing however is certain and that is that any Brexit will require changes to the operation, production and financing of food products and production.

Victor van Ahee

victor.van.ahee@loyensloeff.com 

https://www.loyensloeff.com/en-us/news-events/news/brexit-blog-4-food-beverages

Promoting taste helps make insect-based food more appealing

http://www.ift.org/food-technology/newsletters/ift-weekly-newsletter.aspx#sort=%40fiftdate90933%20descending

For some people around the world, insects are part of their everyday cuisines. For others, however, the thought of eating insects is unappealing. Advocates who support eating insects say that it offers health and environmental benefits, but a recent study found that this might not be the most effective way to encourage people to eat insect-based food. The results of the study found that promoting the enjoyable features of insect-based food is more effective than emphasizing the health and environmental benefits.

The study subjects were shown an advertisement for an insect-based food product that either highlighted the health and environmental benefits of the food or one that promoted the pleasurable aspects, including taste and claims of quality and luxury, of the food. Then the subjects were given the option to try a chocolate truffle made with mealworm. The results found that the ads promoting the health and environmental benefits were significantly less effective than those that touted the pleasurable aspects at making subjects more willing to try the mealworm chocolate truffle. 

Edible insects business network - massimo.reve@gmail.com
_________________________________________________________

Patentability of plant products obtained by an essentially biological process

In a decision issued by the Technical Board of Appeal on 5 February 2019 (T 1063/18, 5 December 2018), plant products obtained by an essentially biological process were found to be patentable subject matter.

 

The decision deals with the conflict between the interpretation of Article 53(b) EPC by the Enlarged Board of Appeal, and Rule 28(2) EPC of the Implementing Regulations.

 

Essentially biological processes for the production of plants or animals are excluded from patentability according to Article 53(b) EPC.  However, the patentability of products of those essentially biological processes has remained a contentious area that has seen several landmark decisions from the EPO Board of Appeals over the last 5 years, of which this latest decision is another.

 

Conflict between Article 53(b) EPC and the Biotech Directive

 

Following decisions by the Enlarged Board of Appeal in G2/12 and G2/13, claims directed to plant products obtained by an essentially biological process were found to be allowable.  However, a subsequent review of these decisions by the European Commission found the board’s interpretation of Article 53(b) EPC to be at odds with Article 4 of the EU Biotechnology Directive (“the Biotech Directive”).  The intention of the Biotech Directive, the European Commission concluded, had been to also exclude products obtained by an essentially biological process.

 

Rule 28(2) EPC of the Implementing Regulations was subsequently amended by the Administrative Council of the EPO in an effort to preserve legal harmony.  This amendment excluded products obtained by an essentially biological process from patentability.

 

Decision in T 1063/18

 

The recent decision in T 1063/18 challenges the validity of this amendment to Rule 28(2) EPC, finding it to be in direct conflict with the interpretation of Article 53(b) EPC by the Enlarged Board of Appeal.  Since the views of the European Commission, and hence the amendment to Rule 28(2) EPC were not confirmed in a legally binding way, the board concluded that Article 53(b) EPC as interpreted by the EBA should take precedence.  Subsequently, the board found that the applicant’s claim directed to a chilli plant obtained by an essentially biological process was patentable subject matter.

 

Where do we go from here?

 

This latest decision is good news for rights holders with inventions relating to plants.  However, the decision highlights a conflict between the positions of the European Union and the interpretation of the provisions of the EPC by the EPO Boards of Appeal.  How will this conflict be resolved?  Further attempts to amend the Implementing Regulations to the EPC under the direction of the EU would likely arrive at a similar decision as in the present case.

 

An amendment to Article 53(b) EPC itself may be one way to restore harmony between the EPC and the position of the EU.  However, the European Patent Convention is an agreement that extends beyond simply the EU member states.  Amendments to the EPC at the request of the EU could be met with some resistance.

 

The decision could be seen as a victory for patent proprietors in this technical area, but given the interest of the EU Commission in achieving harmonisation in patent law for biotechnological inventions, one suspects that we have not heard the last of this matter.

La moda del "SIN" en el marketing alimentario y sus efectos

A principios de este siglo, la mayoría de los reclamos utilizados en el marketing alimentario eran positivos, como por ejemplo, alegaciones del tipo "rico en..." o "le ayuda a..." De hecho, tuvo que llegar el Reglamento (CE) 1924/2006 sobre declaraciones nutricionales o de propiedades saludables para poner orden por los excesos que se estaban produciendo al utilizar estas afirmaciones.

Sin embargo, hoy en día parece que todo lo que vemos son mensajes negativos. Haga la prueba. Sólo tiene que darse un paseo por el supermercado como un consumidor más y observar cuántos etiquetados de productos alimenticios contienen la palabra "SIN"

Sin gluten, sin lactosa, sin grasas, sin azúcares añadidos, sin conservantes, sin edulcorantes y colorantes artificiales.... Y así podríamos continuar un buen rato.

El caso es que este tipo de alegaciones va "in crescendo" paralelamente a la caída de las cosas positivas que decimos sobre nuestros productos. Pero, ¿se puede construir una imagen positiva de un producto sólo a base de términos negativos, centrándonos en "LO QUE NO TIENE"? 

¿Y la imagen de la industria alimentaria?, ¿qué es lo que hacía fabricando unos productos eran tan malos antes de eliminar todas esas cosas supuestamente perjudiciales?

https://www.globalalimentaria.com/blog/la-moda-del-sin-en-el-marketing-alimentario-y-sus-efectos

Véase también: https://www.linkedin.com/feed/update/urn:li:activity:6500723092527153152

UK: Food for thought: exploring the impacts of allergen labelling reform

https://brodies.com/binformed/legal-updates/food-for-thought-exploring-the-impacts-of-allergen-labelling-reform

On 25 January 2019, DEFRA launched a consultation to elicit stakeholder feedback on potential changes to the laws governing the allergen labelling of food and, specifically, the regulatory distinction between pre-packed and non-prepacked food. 

At present, the Food Information to Consumers Regulation (FIC) imposes onerous regulatory obligations on food businesses to provide accurate and comprehensive labelling information on pre-packed foods. For instance, foods must be labelled with full ingredients and, if any of the 14 allergens listed in Annex II of the FIC (e.g. nuts, dairy) are present, these must be explicitly stated on the product label. However, the law imposes less prescriptive standards for non-prepacked foods and permits food businesses to take alternative practical measures to communicate allergen information. The specific focus of the DEFRA consultation relates to a type of non-prepacked food called “food pre-packed for direct sale” (PPDS). However, the distinction between pre-packed and PPDS foods is not necessarily clear. Indeed, recent cases demonstrate that understanding in this area is low, with consumers legitimately assuming that packaged food not labelled with allergens simply contains no allergens.

In order to combat this issue, DEFRA has outlined proposals for reform of the PPDS system. The purpose of this legal update is therefore to examine each proposal and consider the question: Does the law proportionately balance the interests of food businesses against the welfare of consumers?

 

Background to the consultation

The impetus for the consultation was a coroner’s inquest which followed several high-profile allergy-related fatalities in the UK. The revelation that the law obliquely discriminates between packaged foods, with such profound consequences for consumers, has ignited debate at a parliamentary level; compelling legislators to question whether the current framework is fit for purpose.

A second driving factor is the growing prevalence of food allergies, coupled with the fact that more and more people are eating out. Indeed, data released in 2017 by NHS England shows that the number of people being admitted to hospital after suffering a food allergy is rising by more than 10% each year. Whilse this cannot be solely attributed to failures in PPDS food labelling – or in fact any one cause – the UK Government’s desire to effect meaningful change in this area is evident.  

 

Setting the regulatory landscape

Food allergen labelling is regulated at both an EU and UK level, as well as being a devolved power of the Scottish Parliament. Since 2014, the overarching legislative framework for the provision of allergen information has been the FIC. Indeed, the presumption is that the FIC will be transposed into UK law at the point of Brexit. In the longer-term, however, the consultation alludes to an “opportunity to review all food labelling” post-Brexit.

The FIC notably introduced a duty on Food Business Operators (FBOs) to ensure that all mandatory food allergen information is accurate, available and easily accessible to the consumer. In addition, the FIC allows for the implementation of national measures to govern how information is made available for non-prepacked foods. The UK utilised this discretion by applying a flexible and non-prescriptive approach to the labelling of PPDS foods by FBOs. Specifically, under UK law, allergen information for PPDS foods should be made available by any means a business chooses; including by attaching a “readily discernible” label or notice indicating that a member of staff can be consulted.

Each country in the UK has its own parallel implementing regulations, establishing enforcement provisions that are then administered by food enforcement officers within local authorities e.g. the Food Information (Scotland) Regulations 2014. It is worth noting that although food safety and labelling is a devolved competence in Scotland, the consensus is that regulatory consistency is necessary for securing post-Brexit trade deals. The fact that the consultation is the product of collaboration between DEFRA, Food Standards Scotland, the FSA and the Department for Health and Social Care is, therefore, indicative of the desire for a UK-wide approach to food standards.

 

The scope of PPDS

The FIC does not provide a specific definition of PPDS. As such, the Food Standards Agency’s (FSAs) technical guidance on allergen labelling is instead used throughout the consultation paper. It defines PPDS foods as “foods that have been packed on the same premises from which they are being sold”. These foods are treated in the same way as non-prepacked foods in FIC’s labelling provisions, so they are not required to list allergen information on labels. This subtle regulatory distinction has a significant impact on the labelling obligations for FBOs and, consequently, the level of information available to consumers.

DEFRA’s proposals

DEFRA is seeking views on a range of policies as a means of making food allergen information clearer for consumers. The first proposal presents a broad regulatory ambition to achieve enhanced collaboration between industry and regulators, with a goal towards shaping best practices. The remaining three proposals are more practical and involve the use of increasingly more prescriptive (and onerous) regulatory measures.

“Ask the staff” labels

This proposal mirrors the current law in that a uniform label would be affixed to packaging, advising those with allergies to speak to a member of staff for information. However, on request, staff would additionally have to provide a written list of any of the 14 allergens, or a full list of ingredients, before food is purchased. In a similar vein to the first proposal, the intention here is to build an environment where consumers are encouraged to communicate with staff about allergy requirements when choosing PPDS foods.

This ‘soft law’ approach is likely to be preferable to PPDS businesses that want to make allergen information available in a way that aligns with their business model. In addition, the cost and administrative burden (particularly for small and micro businesses) is not likely to be high. However, this measure places a heavy burden on consumers to proactively and consistently engage staff. DEFRA also acknowledges that, in the absence of binding regulatory measures, this may not be persuasive enough to provoke the systemic change being called for.

Allergen-only labelling

The third proposal would require PPDS foods to have on their packaging (i) the name of the food and (ii) whether any of the 14 allergenic ingredients are intentionally present; without requiring disclosure of a full ingredient list.

On the other hand, people who are allergic to substances that are not on the list of 14 allergenic ingredients will not gain any benefit from this proposal. The consultation also points out that this measure does not mitigate the risk of product contamination nor of mislabelling; particularly in busy environments where foods containing different allergens are made simultaneously. An over-reliance on the accuracy of labelling may discourage consumers from engaging in dialogue with staff, leading to an increase in allergy-related incidents.

Full ingredient labelling

The final option that DEFRA proposes is an extension of option 3, requiring PPDS foods to contain a full ingredients list, as well as the name of the food and a list of the 14 allergens. This would align PPDS foods with the requirements for pre-packed foods, allowing for a more consistent and harmonised approach to food labelling. In addition, consumers with food allergies and intolerances beyond those mandatorily defined by FIC may have more trust in the food they are eating given the full delineation of ingredients. 

As with the previous proposals there are, however, potential drawbacks. For instance, although staff do not have to be relied upon to provide accurate information directly to consumers, on-site labelling processes are likely to be required, which would involve the substantial training of staff to use accurately. For obvious reasons, this option carries the greatest risk of mislabelling. Also, the additional cost of full allergen and ingredient labelling may reduce consumer choice if businesses feel that they must remove certain foods or limit menu variations (e.g. one-off specials), in order to avoid the costs of extra labelling.

 

Towards regulatory change – the impact on industry?

One issue that is openly approached in the consultation is the potential cost of any law reform to FBOs. It is important to acknowledge that the additional administrative, resource and cost burdens associated with DEFRA’s proposals are likely to be felt most by small (<49 employees) and micro businesses (<9 employees). Indeed, the consultation’s impact assessment estimates re-labelling costs at £10.99 - £1,978.59 per stock keeping unit, depending on the size of the business. This would be a significant (and potentially unsustainable) burden for smaller companies who are not able to pass costs onto customers without risking the loss of business.

In contrast, one issue that is deliberately excluded from the consultation is the presence of Precautionary Allergen Labelling (PAL) on PPDS foods. Even if FBOs implement full ingredient and allergen labelling standards, consumers may still be put at risk if the unintentional presence of food allergens due to cross-contamination is not indicated. Given that the consultation’s overarching policy objective is to improve consumer information, it is unclear why an enhanced guarantee of safety is excluded from consideration.

Though the safety of consumers is the primary concern, it should not be the sole concern. It would seem that a delicate balance remains to be struck between protecting the wellbeing of consumers through transparent labelling, and preventing FBOs from carrying a disproportionate regulatory burden. On this basis, it is unclear which of the consultation’s proposals will be best placed to deliver this. What is clear is that, going forward, a standardised approach to dealing with allergen information is needed. For this to work, agencies like DEFRA and the FSA will need to continue to work with wholesalers and retailers to establish an industry-wide best practice approach.

The consultation is open to businesses, consumer groups, enforcement authorities and members of the public. 

Eric Galbraith - eric.galbraith@brodies.com

Grant Strachan - grant.strachan@brodies.com

W

Copyright in a Taste - a “Work” in Progress

The CJEU in Levola Hengelo BV v Smilde Foods BV (“Smilde”) gave an important judgment on the meaning of a “work” under EU law and whether taste is capable of being protected by copyright as a work. In summary, the court held that Directive 2001/29/EC (the “InfoSoc Directive”) must be interpreted as precluding: (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.

Background

The request for a preliminary ruling was made by the Dutch Regional Court of Appeal, in May 2017, in the context of proceedings in which it was claimed that Smilde’s “Witte Wievenkaas” spreadable dip infringed rights held by Levola in respect of copyright in the taste of its “Heks’nkaas” food product. Part of the motivation for the request seems to have been the different approaches evident in Member States as to whether or not smells can be protected by copyright.1

AG’s Opinion

Advocate General Wathelet, who delivered his opinion on 25 July 2018, noted that copyright protection extends to original expressions and not to ideas and that those expressions, by reference to the Sieckmann 2 criteria for trade marks, should be identifiable with sufficient precision and objectivity so that the scope of a work’s copyright protection can be determined. Such legal certainty was in the interests of both the copyright holder and potential third party infringers. AG Wathelet was of the view that a taste is “ephemeral, volatile and unstable” and should not be considered a work for the purposes of copyright protection.

CJEU Judgment

The Grand Chamber of the CJEU delivered its judgment on 13 November 2018. The CJEU held that two cumulative conditions must be satisfied for subject matter to be classified as a “work” within the meaning of the InfoSoc Directive: (i) the subject matter concerned must be original in the sense that it is the author’s own intellectual creation; and (ii) it must be the expression of the author’s own intellectual creation.

The Court then referred to the idea/expression dichotomy as set out in Article 2 of the WIPO Copyright Treaty 3 and Article 9(2) of TRIPS, 4 i.e. that copyright protection may be granted to expressions, but “not to ideas, procedures, methods of operation or mathematical concepts as such”, before saying “Accordingly, for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.” Like AG Wathelet, the Court’s conclusion was influenced by the need to ensure that subject matter protected by copyright can be identified clearly and precisely, both by the authorities and economic operators, and without any element of subjectivity.

The Court held that the taste of a food product did not meet those criteria. It said:

“42. The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.”

The Court held, moreover, that it was not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.

The Court concluded that the taste of a food product cannot therefore be classified as a work, within the meaning of the InfoSoc Directive. The Court also held that the concept of a work must be given an autonomous and uniform interpretation throughout the EU and so the InfoSoc Directive precludes national legislation from being interpreted in such a way as to grant copyright protection to the taste of a food product.

Comments

• This is a significant judgment in that it, for the first time, harmonises the meaning of a “work” for the purposes of EU law. It does so, first, by adopting the threshold for originality, which was first set out in Case C‑5/08 Infopaq International (i.e. that it be “the author’s own intellectual creation”) as the first requirement for a work. As a result, a work, by definition, will always be an original work. The second requirement is then that a work be the expressionof such intellectual creation, which must make it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
• The legal basis for these requirements is not entirely clear from the judgment – in particular it is not clear how the requirement for precision and objectivity of expression necessarily follows from the idea/expression dichotomy. The conclusion that taste is more subjective than other senses is also questionable – the paragraph quoted above, in particular, seems to focus on factors that suggest subjective appreciation of taste rather than subjective experience of it. A musical work, for instance, might equally be subjectively appreciated depending on the age (and strength of hearing), musical preferences and listening habits of the listener, as well as the environment or context in which it is listened to. It may be that some people in fact experience taste differently to others – for instance if they have a greater number of taste buds, and aromas can also influence perception of taste – though that does is not clear from the reasoning of the Court.
• Nevertheless, the adoption into EU copyright law of criteria that broadly mirror the Siekmanncriteria is to be welcomed. Although the Siekmann criteria are rooted in the graphical representation requirement that arises from registration of trade marks, the absence of any registration requirement for copyright protected works in the EU arguably heightens the need for the public to be able to identify such works, and the limits of their protection, with a tolerable degree of certainty.
• The requirement for precision, the Court’s reference to an absence of technical means to identify a taste and the acceptance of a need to be able to identify copyright protected subject matter, suggest that it would be practically unworkable to extend copyright protection to taste - at least given the standard of technology today. Enforcing copyright in a taste would bring about other practical difficulties too – what does it mean to copy a substantial part of a taste? How would the Courts discount the aspects of a taste to the extent that it is a copy of a taste which has been previously made available to the public?
• The CJEU decision must also cast doubt on whether copyright can properly subsist in a smell – again, at least given the standard of technology today.
• The CJEU’s harmonisation of the meaning of a work suggests that anything that meets the criteria set out in the judgment should be protectable as a work as a matter of EU law. It is conceivable that some such work might not fall within one of the categories of works listed in the (exhaustive) definition of a work in the Irish Copyright and Related Rights Act 2000.5 While that seems like a remote possibility, and the CJEU’s judgment was to a significant extent rooted in the Berne Convention, which provides for the protection of what it describes as “literary and artistic works”, the possibility of protection arising for a type of work that falls outside of the traditional categories of work, and a potential conflict between the 2000 Act and EU law, is something that should not be entirely discounted.
• As things stand, copyright in a taste would likely have to be assessed under the Irish legislation as an artistic work, a category in which it arguably does not sit comfortably.

---

1. The Court of Cassation in France ruled that scent was not capable of being subject to copyright protection (Cour de cassation, civile, Chambre commerciale, 10 décembre 2013, 11-19.872, Inédit), whilst in the Netherlands the Dutch Supreme Court accepted the possibility of copyright protection of a scent (Lanôme, Hoge Raad der Nederlanden, 16 June 2006.)
2. Sieckmann, C‑273/00, 12 December 2002
3. World Intellectual Property Organisation (“WIPO”) Copyright Treaty of 20 December 1996.
4. The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) of 15 April 1994.
5. Under the 2000 Act a “work” means a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, typographical arrangement of a published edition or an original database and includes a computer program except in Part II, Chapter 7 where “work” means “literary, dramatic, musical or artistic work or film”.

Shane.OBrien@mccannfitzgerald.com - Fiona.OBeirne@mccannfitzgerald.com

QUESO MANCHEGO Y EVOCACIÓN DE LA DENOMINACIÓN DE ORIGEN: CONCLUSIONES DEL ABOGADO GENERAL DEL TJUE

Petición de decisión prejudicial presentada por el Tribunal Supremo (España) el 24 de octubre de 2017– Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego / Industrial Quesera Cuquerella S.L. y Juan Ramón Cuquerella Montagud

(Asunto C-614/17)

CONCLUSIONES DEL ABOGADO GENERAL

SR. GIOVANNI PITRUZZELLA

presentadas el 10 de enero de 2019

https://eur-lex.europa.eu/legal-content/ES/TXT/HTML/?uri=CELEX:62017CC0614&from=EN

https://blog.cuatrecasas.com/propiedad-intelectual/queso-manchego-evocacion-la-denominacion-origen-conclusiones-del-abogado-general-del-tjue/#page=1

El Abogado General Giovanni Pitruzzella responde a las cuestiones prejudiciales planteadas por el Tribunal Supremo que tienen por objeto la interpretación del término “evocación” utilizado en la normativa de la Unión relativa a las denominaciones de origen protegidas (en adelante, DOP).

Esta petición se presenta en el contexto de un litigio entre la Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego, titular de la DOP, contra Industrial Quesera Cuquerella S.L., que utilizaba etiquetas con elementos figurativos que se vinculan a la región de La Mancha y a la novela “El Quijote” para identificar y comercializar los quesos “Adarga de Oro”, “Super Rocinante” y “Rocinante”, que no están amparados por la DOP.

En la resolución de remisión, el TS precisa que: (i) la palabra manchego es el adjetivo con el que en español se denomina a los productos originarios de La Mancha, (ii) La Mancha es la región en la que se desarrolla la novela “Don Quijote de La Mancha”, (iii) la descripción física que Cervantes hace del protagonista se corresponde con el dibujo de la etiqueta controvertida; (iv) la palabra española “adarga”, es un arcaicismo utilizado en la novela para referirse al escudo de Don Quijote; (v) Rocinante, es el nombre del caballo de Don Quijote; (vi) en uno de los capítulos más conocidos, Don Quijote se enfrenta a molinos de viento, elemento característico que se reproduce en la etiqueta.

En este contexto, el TS español alberga ciertas dudas en torno a la delimitación del concepto de “evocación” al amparo de la normativa sobre DOP y plantea tres cuestiones prejudiciales al TJUE.

En la primera cuestión prejudicial, el órgano jurisdiccional remitente pregunta, en esencia, si el uso de marcas verbales es requisito necesario para la existencia de la evocación o si esta puede producirse con el empleo de signos figurativos que remitan a la zona geográfica de referencia de la DOP para comercializar productos similares a los que están amparados por tal denominación.

La demandante entiende que debe preservar, para el queso que se beneficia de la DOP, los símbolos literarios y turísticos de Castilla La Mancha. Sostiene que los personajes de la novela de Cervantes se vinculan de manera indisociable con el lugar donde discurre la acción principal y que, por tanto, el empleo de estas figuras se vincula asimismo en la mente del consumidor con una determinada zona geográfica.

No obstante, ¿puede el titular de derechos monopolizar el uso de una región cuando esta esté íntimamente relacionada con la DOP? Y más allá de las denominaciones verbales ¿puede el titular de la DOP apropiarse de todos los símbolos y figuras que se relacionen con la región, incluso aunque provengan de una obra literaria?

El AG entiende que también los signos figurativos pueden producir evocación, por las razones que expondremos a continuación.

En sus conclusiones recuerda que de los precedentes jurisprudenciales se desprende que una evocación ilícita implica una asociación suficientemente directa e inequívoca en el consumidor con los productos protegidos por la DOP (asunto c-87/97, “Gorgonzola”, c-132/05 “Parmigiano Reggiano”, entre otros)

El AG concluye que esta asociación no implica, de manera imperativa, el uso del lenguaje verbal, sino que puede provenir, como el caso de autos, de un signo figurativo como una imagen. A su juicio,

el juez nacional está obligado a valorar un conjunto de indicios, sin que la presencia o la ausencia de alguno de tales indicios como, por ejemplo, la semejanza visual, fonética o conceptual entre las denominaciones en cuestión permita por sí sola constatar o excluir la existencia de una evocación (punto 29).

Por tanto, el concepto de evocación se aplica también a situaciones en las que un signo gráfico, sin presentar una semejanza gráfica y fonética con la DOP, suscita en el público al que se dirige una asociación de ideas. Esta interpretación garantiza la correcta protección de las denominaciones de origen protegidas y protege así aquellas circunstancias en las que se lleve al consumidor a pensar, como imagen de referencia, en la mercancía que se beneficia de la DOP.

La segunda cuestión prejudicial plantea, de manera inédita, si el empleo de signos figurativos que evoquen la región de La Mancha para comercializar queso implica evocar la DOP y, en consecuencia, si los productores de quesos amparados por la denominación disponen del monopolio del uso de dichos signos.

Una respuesta afirmativa a esta cuestión podría comportar una grave restricción a la libre circulación de mercancías ya que podría dar lugar a que los fabricantes de quesos no podrían utilizar ninguna imagen de La Mancha, que pasaría a ser de uso exclusivo de la titular de la DOP.

No obstante, una respuesta negativa permitiría a los operadores económicos beneficiarse indebidamente de la reputación de la DOP en cuestión mediante una utilización abusiva de tales denominaciones, menoscabando el esfuerzo efectuado con respecto a la calidad de los productos.

Los objetivos de la normativa de la Unión se verían ignorados si, por la mera razón de que un producto esté implantado en la zona geográfica a la que pertenece la DOP, un productor tuviera derecho a evocar esta última aun cuando sus productos no respetaran las características de dicha DOP.

El AG entiende que esta evocación solo puede ocurrir cuando la asociación de ideas con la zona geográfica de la DOP, suscitada por la utilización de signos evocativos, lleve directamente a la mente del consumidor los productos amparados o protegidos, lo que corresponderá analizar al juez nacional (punto 37). Para ello, debe realizarse un examen global que tenga en cuenta todos los elementos de las etiquetas controvertidas, así como las modalidades de presentación, publicidad y comercialización (punto 49).

En último lugar, en la tercera cuestión prejudicial el AG concluye que el “concepto de consumidor medio” debe entenderse en el sentido de que hace referencia al consumidor europeo, pero este incluye al del Estado miembro en el que se fabrica el producto en cuestión.

Autora: Marta Zaballos - marta.zaballos@cuatrecasas.com

Fuente: Eurlex y Blog CUATRECASES