C-56/80

JUDGMENT OF T H E COURT OF 25 FEBRUARY 1981 1

Firma A. Weigand v Schutzverband Deutscher Wein eV (preliminary ruling requested by the Bundesgerichtshof)

"Description and presentation of wines"

Case 56/80

Agriculture — Common organization of the market — Wine — Description and pres- entation of wines — Prohibition of "misleading information"— Scope (Council Regulation No 355/79, Arts 8 (c), 18 (c) and 43)

The expression "misleading information" confused with the description of a employed in Articles 8 (c) and 18 (c) of particular small locality ("Lage") but Regulation No 355/79 laying down also all descriptions which are liable to general rules for the description and induce the public to believe that the presentation of wines and grape musts description in question is the name, or and the expressions "confusion" and part of the name, of a wine-growing "false impression" occurring in Article local administrative area ("Weinbauort") 43 of the same regulation must be which does not in fact exist or the name interpreted as covering not only of a small locality ("Lage") which does descriptions which are liable to be not in fact exist.

on the interpretation of Articles 8 (c), 18 (c) and 43 (1) and (2) of Council Regulation (EEC) No 355/79 of 5 February 1979, laying down general rules for the description and presentation of wines and grape musts (Official Journal 1979, L 54, p. 99),

T H E COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due and U. Everling, Judges,

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

"Bereich Mittelhardt — Deutsche Wein- even when they are not preceded by a straße und Rheinland-Pfalz, Qualitäts- place name. wein". The labeis also bear an illus- tration of a monk drinking wine and The action brought by the Schutz- looking out of the window of his study verband Deutscher Wein was unsuc- ("Klosterdoktor") or the picture of a cessful in the Landgericht [Regional "Schloßdoktor" in period dress, some- Court] Mannheim, but was successful in times accompanied by the text of a the Oberlandesgericht [Higher Regional

The descriptions specific localities are more highly "Klosterdoktor" and "Schloßdoktor" regarded than blended wines. call to mind the description "Doktor" Weigand contended in its appeal before which is well-known as a name of wine- the Bundesgerichtshof that Article 3 of growing localities, occurring frequently the UWG was not applicable in this in German wine-growing regions, and instance because the descriptions selected which has become world-renowned in were permissible under the provisions of the name "Bernkasteier Doktor". Community law on the description of wines (notably Article 43 (1) of Council Regulation No 355/79), which lays The words "Schloß-" and "Kloster-", down comprehensive rules on the which refer to buildings, also constitute subject. Labelling which is permitted geographical references because they are under Articles 18 and 43 (1) of that regu- synonymous with the names of small lation because it is not liable to cause wine-growing localities ("Weinberg- confusion with another permitted lagen") in Dienheim and Oppenheim or description of wine from a particular because they appear in the names of locality is also permissible if repeated in many small wine-growing localities. Thus advertising material, within the meaning deception is being practised as to the of Article 43 (2), even though it would geographical origin of the wine.

It considers that the may give the false impression that they question whether or not the small refer to small wine-growing localities locality "Bernkasteier Doktor" is known

only under that combination of words is scriptions or information which irrelevant to that of how far the word induce the public to believe that "Doktor" is known as a description of a what is being represented is the small wine-growing locality. What is at name, or part of the name, of a issue is not the possible danger of wine-growing local administrative confusion with that particular locality area ("Weinbauort"), which does but whether, because that wine is well- not in fact exist, or of a small known as coming from a particular wine-growing locality ("Weinbau- locality, the descriptions here objected to lage"), which does not in fact may, because of the component exist? "-doktor", likewise be taken as describing small wine-growing localities, 2. If Question 1 (b) is answered in the with the consequence that wine thus affirmative : described as if it came from a specific small locality would mistakenly be more (a) May a description and pres- highly regarded than a wine whose entation (in this case, labelling) origin is not stated. which is not objectionable under Article 43 (1) none the less come The Bundesgerichtshof is also of the within the scope of Article 43 (2), opinion that, if well founded, Weigand's or does Article 43 (1) provide argument would be of some importance comprehensive rules for the in deciding the case, since the judgment description of products? against it can only be supported by (b) Does Article 43 of the regulation Article 3 of the UWG. As the argument permit the application of national raises a question of Community law the legislation having wider scope, for Bundesgerichtshof made an order on 19 example, Article 3 of the UWG December 1979 whereby it deferred (Gesetz gegen den unlauteren judgment and referred the following Wettbewerb [Law against unfair questions to the Court of Justice for a competition]), in a case where preliminary ruling under Article 177 of consumers may be misled by a the EEC Treaty: description which, whilst it cannot be confused with the name of an 1. Must the word "confusion" in Article actually existing small locality, 43 (1) of Regulation (EEC) No may give the impression of being 355/79 of 5 February 1979 (Official the name of a small locality. Journal L 54, p. 99 et seq.) and/or the words "misleading information" in Articles 8 (c) and 18 (c) of the regu- B — The relevant Community rules lation, as distinct from the words "false impression" in Article 43 (2) of the regulation, be interpreted as Council Regulation No 355/79 is based covering only cases in which on the fact that Council Regulation No 337/79 of 5 February 1979 on the (a) purchasers may confuse a brand common organization of the market in name with another specific brand wine (Official Journal L 54, p. 1) "lays name or description (in the down certain rules governing the present case, a description of a description of certain wines in particular small locality ("Lage")) or cases and provides for the adoption of general rules on the description and (b) are confusing descriptions or presentation of certain wine products" misleading information to be (Article 54). Regulation No 355/79 understood as covering de- therefore provides :

In Article 43 : D — The procedure in the Court of Justice " 1 . The description and presentation of the products referred to in Article 1 (3), including any form of A copy of the order malting the advertising, must not be liable to reference was received at the Registry of cause confusion as to the nature, the Court on 13 February 1980. origin and composition of the product; this shall apply to the infor- Firma Weigand, represented by Fritz mation referred to in Articles 2, 12, Hallgarten, of the Wiesbaden Bar, the 27, 28 and 29. Schutzverband Deutscher Wein eV, represented by Peter Hass, of the 2. The description and presentation in Mannheim Bar, the Government of the advertising material must be such as Federal Republic of Germany, represen- not to create a false impression of ted by its Legal Adviser, Martin Seidel, the product in question, particularly acting as Agent, the Government of the as regards: French Republic, represented by its

JUDGMENT OF 25. 2. 1981 — CASE 56/80

In open the oral procedure without any advertising material, that is to say, price- preparatory inquiry. lists, brand names can immediately be identified for what they are. All branded wines are quality wines psr, including the II — O b s e r v a t i o n s submitted to "Lagenprädikatswein" "Pölicher Held", the C o u r t which bears the word "Kabinett" and the "Schloßdoktor" trade-mark, and other "Prädikatsweine" bearing the

The order comprises two elements: the name of making the reference makes no mention the vineyard and that of the local of the fact that the labelling has already administrative area in which the vineyard been the subject of criminal proceedings is situated. The term "Doktor" is only for infringement of Article 46 of the one element in the composition of the Weingesetz, in the course of which it following descriptions of wines from a became clear that no objection could be given locality which are officially made to the brand names and the use

WEIGAND v SCHUTZVERBAND DEUTSCHER WEIN

impression". On that point the wording trade-mark and the trade name." of Article 18 is clear and defines the That provision ceased to apply in 1971. nature of permitted brand names. The Article 46 of the Weingesetz of 1971 information liable to create confusion made certain changes; the requirements must be included in the brand name, that listed therein were supplemented by the is to say, it must be conveyed by the fourth indent of Article 16 of the wording or the illustration.

That is due to labelling are based on two fundamental harmonization with the legal position in principles: France and Italy where, in fact, only a — the consumer must be given precise small proportion of production may bear information as to the description of the designations of origin "AC" the wine; [appellation contrôlée] and "VDQS" [vin délimité de qualité supérieure], or — the vendor must ensure that the " D O C " [denominazione di origine purchaser does not confuse a wine of controllata] and " D O C G " [denomina- a specific origin with wine of a zione di origine controllata e garantita]. different origin.

For so long as that supplement the preceding ones, the first list is not published a common basis is paragraph dealing,, with all kinds of lacking. advertising, whether oral or written, in the press, on radio, or on television, the second paragraph dealing with In its well-known judgment on sparkling advertising relating to all the descriptions wines and spirits (Case 12/74, taken together, that is to say brand Commission v Germany [1975] ECR 181) names and all descriptions, both lawful the Court stated that:

". . . registered designations of origin and description of a district nor the indirect indications of origin . . . only description of a specific small locality. It fulfil their specific purpose if the product is part of the descriptive name of a which they describe does in fact possess "Typenwein" called "Affentaler Spätbur- qualities and characteristics which are gunder Rotwein" (comprising blended due to the fact that it originated in a wine and a percentage of the product of specific geographical area . . . [which], as the sweetening process, or grape must, regards indications of origin in from a specified wine-growing region, particular, . . . must confer on [the intended for sweetening). It is a name product] a specific quality and specific which has been invented for blended characteristics of such a nature as to red wines, in the same way as distinguish it from all other products". "Liebfraumilch", "Ehrentrudis" or "Badisch Rotgold" are invented names. A brand name cannot be regarded as The Bundesgerichtshof would appear to liable to mislead merely because it wish to treat vague expressions as contains the same word-ending as indications of origin. Weigand challenges another. A purchaser is confused only if the opinion expressed in the order he is acquainted with a product bearing a making the reference to the effect that similar designation and thinks he is there are some names which, by their buying that product. One wine must not nature, are liable to create a false be taken for another specified wine nor a impression, such as the word "Doktor", branded wine with a statement of its which does not, however, have any origin be taken for a wine of different geographical connotation. geographical origin.

The in "-berg" (mountain), "-tal" or "Klosterdoktor" and "Schloßdoktor" "-thaler" (valley), "-halde" (hillside) and brand names refer to personages and dozens of names which end in "-garten" contain no geographical reference (garden). In the case of the names which whatsoever. Without the name of a the order for reference refers to as place, a name of the vineyard constitutes inducing a belief in the public, what are an imaginary, and therefore permitted, involved are apparent indications of description. Weigand observes that the geographical origin where neither a question is correctly posed in the body of corresponding place name nor a the order making the reference.

WEIGAND v SCHUTZVERBAND DEUTSCHER WEIN

in question, for it is there stated that the the order making the reference was buyer mistakenly regards more highly a made the Bundesgerichtshof, in a wine coming from a specific small decision not subject to appeal, refused to locality. accept the brand name "Fürstenthaler" with a view to its registration as a trade- mark with the German Patent Office. Weigand takes the meaning of Question The applicant, however, was not asked 2 (a) to be as follows: about and gave no indication of the kind of wine he intended to market under that name; nor was he asked to produce "Can a permitted description and pres- samples of wine in order to establish entation be set out in advertising material whether consumers' expectations as to in such a manner as to create a false quality would be met. impression as to origin or quality?"

JUDGMENT OF 25. 2. 1981 — CASE 56/80

identical. Thus the question refers to exhaustive set of rules for the description origin, whilst the grounds of the order of products. The design of the label also indicate that the consumers' expectation constitutes advertising and is covered concerns the quality. Provided that the by paragraph (2) of the article wine which is supplied is of the quality independently of paragraph (1). The anticipated, there is no ground for difference between the two paragraphs seeking an injunction, and therefore an lies purely in the fact that the scope of application under Article 3 of the UWG the concept of advertising is not as wide could not succeed. in the Member States as in German law. The use of two paragraphs in Article 43

In the same way as all the brand name or what constitutes it to Community law relating to viticulture, belong, by its very nature, to the class of Article 43 is a provision of public law descriptions previously listed. In fact because it regulates a market. It is anything which is considered to be other permissible to apply concurrently with than what it is in reality is equally liable those rules the provisions of civil law, to give rise to confusion. An invented especially those which pre-date the description cannot be "false" in the strict Community law. Moreover, Community sense, only, at most, liable to mislead, law does not contain exhaustive rules precisely because it may be thought to be even in that respect, for criminal an indication of the geographical origin, penalties are to be adopted at the level of and thus may be confused with, or

WEIGAND v SCHUTZVERBAND DEUTSCHER WEIN

Under Article 46 of the information” to be restricted to cases Weingesetz, there exists an equivalent where the brand name is confused, in the wide-ranging prohibition against creating course of trade, with another specific a false impression, whether in labelling brand name, or with the description of a or in general advertising. That specific small wine-growing locality. prohibition goes on to include expressly “imaginary descriptions”, “which are liable to give the false impression that In the view of the Federal Government they constitute an indication of the that interpretation is based on the geographical origin”. The corresponding evident purpose and scope of the French provisions are no less prohibition against creating a false comprehensive. impression set out in paragraph (2) of Article 43 and on the interdependence between that provision and the other In view of the purpose of the rules, the provisions involved in this dispute, doubts which have been raised as to their referred to above. Whilst paragraph (2) wording, especially in the German of Article 43 prohibits the creation of a language version, are not justified.

JUDGMENT OF 25. 2. 1981 — CASE 56/80

Article 43 (1), Court of Justice is not required to reply on the other hand, concerns all to it unless its reply to part (b) of the compulsory or permitted descriptions — first question is in the negative. As the which include brand names — whether Federal Government gives an affirmative used in labelling or in advertising, but reply to that question, it does not does not apply to symbols or illu- consider it necessary to give its obser- strations, which are not mentioned in vations on the second question. It Regulation No 355/79.

The quences, the power to decide what the French Government remarks, on this legal consequences of an infringement of matter, that the Decree of 21 April 1972 prohibitions laid down by Community treats the regulation in question as a law are to be remains with the Member decree adopted in application of the States. That is why, where there is an criminal law of 1 August 1905. The infringement of the prohibitions laid purpose of that provision was to enable down in Article 43 or in Articles 8 and the criminal penalties under that law to 18 of Regulation No 355/79, which at be applied to breaches of Community the same time presents the elements law. Any interpretation which has the which constitute the prohibition against effect of treating the respective spheres creating a false impression within the of application of the provisions in meaning of Article 3 of the UWG, the question as mutually exclusive would legal remedies provided for in Article 13 introduce into French criminal law a of that law are available. concept hitherto unknown to it.

mentioned both in the first paragraph of of origin such as Armagnac and Cognac. that article and in Article 18 (c). As to One could go on to give as an example a the merits of the case, the similarity prohibition against using the French between the place name "Schloßdoktor" definite articles before brand names and the brand name (which must by owing to the confusion which that might definition be invented) "Klosterdoktor" create with well-known place names or inclines one to consider that there is a vineyards (premier cru). risk of confusion as to the origin of the product and that the provisions in question apply simultaneously to the brand name in question which must necessarily appear on the labelling and in advertising material. The Community rules in the field of legislation relating to wine-growing permit the use of names of small localities or groups of localities, of local administrative areas or of parts thereof only if the production area is properly On this subject the French Government defined and if the wine permitted to bear cites the judgment of the Cour de such names comes exclusively from one Cassation of 14 February 1973, of those places, the full list of which according to which the attaching of a must be communicated to the label bearing the trade name "Klerling", Commission in order for it to be which sounds somewhat like the Alsatian published in the Official Journal of the vine variety known as Riesling, to bottles European Communities. It should be of a certain white wine "was intended to added that the geographical names of confirm the impression which the buyer quality wines themselves must be listed might have gained as to the nature and exhaustively. For those reasons, it should origin of the wine, and to mislead him be considered that the provisions . . . Similarly, it is stated in the judgment contained in the articles in question of 27 July 1959 that the labelling of constitute a single body of rules designed bottles of ordinary wine with an to cover as comprehensively as possible imitation of the coat of arms of the town all cases of confusion and that any of Bordeaux and a representation of a restrictive interpretation would run building which appears to be a chateau is counter to the second recital in the clearly liable to mislead buyers as to the preamble to Regulation No 355/79. origin of the wine which is being sold. In a judgment of 18 January 1980 the Cour d'Appel [Court of Appeal], Paris, refused to accept the brand name Sainte Odile even though that is the name of a saint, the place name with which it might be The two provisions in question, namely a confused being "Mont Sainte Odile". Community regulation concerning the Following that reasoning, any brand labelling of wine and a national law for name including the word "Saint" might the prevention of unfair competition, are be prohibited, even if there is no such both designed to protect the consumer, place, owing to the fact that 17 but they differ in nature. The registered designations include the word Community rules on the labelling of (St. Estève, St. Emilion etc.). The same wine have a preventive aspect. The aim policy of rejection could apply to names of the national legislation on unfair ending in "ac", because of designations competition, however, is to provide

In its well known decision in the Walt Wilhelm case, the Court found that as The French Government considers it Community and national law on cartels reasonable thus to recognize the non- consider the latter from different points concurrent nature of laws which partially of view, in the absence of any provision overlap and the right of any person to the contrary the national authorities concerned to select the legal domain may take proceedings in respect of a within which he wishes to place his cartel in application of their national law. action. It stipulated, however, that that application must not prejudice the uniform application throughout the Community of the Community regu- lations. Unlike the circumstances which 5. Observations submitted by the Com- led to the judgment in the Walt Wilhelm mission case, the present case juxtaposes Community law on wine-labelling and national law on unfair competition, that is to say, two bodies of law which are The Commission maintains that if one not concurrent. A precedent as to the proceeds on the basis of a purely choice of application as between linguistic interpretation of the words Community law and national laws may "Verwechselung" ("confusion" in be found in a text which originated from French; "confusion" in English) or the Community, Article 16 of the "verwechselbare Angaben" ("indications Proposal for a Council Regulation on susceptibles de créer des confusions" in the Community Trade-Mark. That text French; "misleading information" in provides that: English) in Articles 12, 18 and 43 of Regulation No 355/79, the reply to the first question from the Bundesgerichtshof "This regulation shall not prejudice the must undoubtedly be that suggested in right to bring other actions in respect of paragraph 1 (a), that is, that the a Community trade-mark under national provision in Article 43 (1) applies law relating in particular to tortious exclusively in the case where a brand liability and unfair competition, for acts name may be confused with another other than those referred to in Articles specific brand name (in the present 10 and 11" (infringement of trade- instance, the trade name of wine from a mark). small locality). As a matter of logic one can only confuse a thing with something else which actually exists, not with That proposal excludes, save in the case something which does not exist, which is of criminal sanctions, recourse to the a false or misleading representation, not

The Commission believes that the order Despite these arguments in favour of making the reference contains an error. interpreting the two terms differently the In view of the purport of Question 1, the Commission is of the view that the word wording of Question 2 would only make "Verwechselung" ("confusion") must be sense if the phrase understood in the wider sense of "Irre- führung" ("false impression"). The "2. If Question 1 (b) is answered in the conclusive argument may be found in the affirmative: . . . " general purport of Article 43. The were to read as follows: distinction between the description and presentation of wine in labelling, on the "2. If Question 1 (a) is answered in the one hand, and advertising, on the other, affirmative: . . ." is an extemely difficult one to make, since all labelling has advertising or: influence, albeit limited. Hence it is hard "2. If Question 1 (b) is answered in the to understand how an impression which negative: . . . " is false in the sense that it has false connotations (the assumption that a wine-growing locality with a given name In that case a reply to Question 2 is exists, whereas in fact it does not) can be unnecessary. Moreover, there is no need permitted in advertising by virtue of for the Bundesgerichtshof to have paragraph (1), only to be prohibited in recourse to the UWG in order to decide advertising by virtue of paragraph (2). the case (Question 2 (b)) because Similar observations apply equally in Community law supplies all that is respect of Articles 8 (c) and 18 (c). It required for an assessment of the would be contrary to the purpose of circumstances of the case. However, it those provisions, which constitute a appears to the Commission that the reply general rule for the prevention of fraud, to the first question does not wholly for them to cover only information resolve the question of the extent to which is false (that is to say, objectively which descriptive brand names which untrue) or "misleading information" contain word components frequently appearing in the names of wine-growing

localities are prohibited under Article 43 which states that in the case of quality and, if they are not, whether it may still wines psr obtained in their territory, perhaps be possible to apply stricter Member States may make compulsory, national provisions. Question 2 (b) is dispense with or restrict the use of also crucial to the decision to be given by certain particulars referred to in Article the court malung the reference because 12 (2). One might be tempted to take the Schutzverband Deutscher Wein eV that provision as meaning that, for has no title to bring legal proceedings example, the use of brand names for a under Article 13 of the UWG unless quality wine psr obtained on German representations have been made of the territory may be restricted by the kind covered by that law. provisions of the UWG. Such an in- terpretation, however, would not survive scrutiny of the concepts of misleading descriptions and presentations of wine. In fact Article 13 (2) makes an exception only in respect of national legislation relating to the optional information for In reply to the question asked at 2 (b), which provision is made in Article 12 (2), the Commission observes that there is to and not as regards other compulsory be found in Regulation No 355/79, provisions of Community law, in taken in conjunction with the im- particular as regards Articles 18 and 43. plementing regulations, a comprehensive That is why in in deciding whether set of Community rules governing the the descriptions "Klosterdoktor" and description and presentation of wines "Schlossdoktor" may be applied to and grape musts. Complementary certain wines having regard to the risks national provisions or derogations are of a false impression being created in permitted only to the extent to which respect of the products the Bundes- they are expressly provided for and auth- gerichtshof must proceed exclusively on orized by Community law. For example, the basis of the provisions in Regulation it would be contrary to the principle of a No 355/79, the UWG not being common market in wine for specific applicable on that point. descriptions used to indicate one and the same characteristic of a wine to be subject to different rules in the various Member States, which might hinder the course of trade. That requirement is fully met by the extremely detailed provisions of Regulation No 355/79 which define It is for the court malting the reference precisely the extent to which national to decide this case on the facts. In rules may allow for exceptions or for construing the terms in question definitive or temporary additions to the particular attention should be given to provisions of Community law. Article 12 (2) (1) and Article 14 where there is a possibility of confusion regarding the description of the wine- producing locality. Those articles lay down the requirements governing the description of a quality wine by the use on the label of the name of a "geo- The only proviso in favour of national graphical unit which is smaller than the legislation in the regulation in question specified region". According to Article which may have some relevance to the 14 (1), first indent, such a smaller geo- present case is that in Article 13 (2), graphical unit may be represented by, in

particular, a small locality. Anicie 14 only arise when the brand name is does not define the various descriptions selected in such a way that it may be which may be selected as the names of understood in the trade as referring to a localities: it leaves to the laws of the smaller geographical unit and the wine Member States the task of determining described by that designation does not them, and in paragraph (2) it provides come from grapes harvested in that merely that that geographical unit must geographical unit. As a general rule there be well-defined and that all the grapes can be no question of a "false from which such wines have been impression" in the case of all brand produced must originate in that unit. names which are manifestly imaginary There should be a requirement that the descriptions, even if certain parts of national laws should no longer accept words correspond to parts of words in any names of localities other than those the names of specific wine-producing recognizable as being geographical localities. That interpretation is borne references. Descriptions which are purely out by the intention of the Community imaginary, even where accepted in local legislature to reduce, in the interest of use and in popular language as indicating the consumer, to a clearly recognizable a specific smaller region, are not basic structure the multitude of wine permitted as names of localities within descriptions hitherto existing. When the the meaning of Articles 12 and 14 description of the wine-producing because, outside that restricted zone, locality (like that of a geographical unit they do not have the identifying effect smaller than the specified regions) can be that a geographical description has. clearly seen to be a geographical Terms such as "Doktor", "Schloß- description, protection of it is only doktor" and "Klosterdoktor", for worthwhile in so far as that is its example, should be considered as function. It would exceed the purpose of imaginary names without any geo- Regulation No 355/79 to attempt also to graphical connotations. The Weingesetz, protect the imaginary constituents of the which, among other things, decides what names of wine-producing localities when names are lawful for wine-growing there is no risk of confusion with wine localities in the German wine-producing from specific wine-growing localities and regions, meets the requirements of when the use of identical imaginary Community law regarding recognition as terms in brand names for wine is quite a geographical unit; when the name of a simply prohibited. According to the wine-producing locality is selected (it terms of Regulation No 355/79 the may also be an imaginary name, description of the wine-producing provided that it refers to an area locality must be recognizable as being a appearing under that name in the local geographical indication and is to be land register), the "Gemeinde" [local protected in that sense. administrative area] or the place name must be added (for instance, "Bern- kasteler Doktor").

provisions do not apply unless that regu- III — Oral procedure lation expressly provides therefor or so authorizes. According to Articles 43 (1), Weigand, represented by F. Hallgarten, 12 (2) (c) and 18 (c), a brand name advocate at the Landgericht Wiesbaden contains information liable to cause and H. Hieronimi, advocate at the Ober- confusion as to the geographical origin landesgericht Koblenz, the Schutz- of a wine, and in particular as to its verband Deutscher Wein, represented by being wine from a recognized wine- Freiherr von Stackelberg, advocate at the producing locality, and according to Bundesgerichtshof, and Peter Hass, Article 43 (2) the description and pres- advocate at the Landgericht Mannheim, entation of a wine in advertising are such the Government of the Federal Republic as to create a false impression of the of Germany, represented by its Legal product in question, when that Adviser, Martin Seidel, acting as Agent, description has been selected in order and the Commission of the European that it may be thought to refer to a Communities represented by Jörn Sack, geographical unit, and in particular a a member of its Legal Department, small locality, within the meaning of acting as Agent, presented oral argument Article 14 of that regulation, although at the sitting on 12 November 1980. the conditions under which the use of such a description of origin is permitted The Advocate General delivered his are not fulfilled in the case of the wine in opinion at the sitting on 16 December question. 1980.

Decision

1 By an order of 19 December 1979, which was received at the Court on 13 February 1980, the Bundesgerichtshof [Federal Court of Justice] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation of Council Regulation (EEC) No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts (Official Journal 1979, L 54, p. 99).

5 The Schutzverband Deutscher Wein, an organization concerned with the observance of fair competition, instituted proceedings against Weigand before the Landgericht [Regional Court] Mannheim. It contended that the descriptions in question were misleading within the meaning of both the German "Weingesetz" [Law on wine] and the "Gesetz gegen den unlauteren Wettbewerb" [Law on unfair competition], hereinafter referred to as "the UWG", because they create the impression that they refer to a "small locality" ("Lage"). According to the Schutzverband, the names "Klosterdoktor" and "Schloßdoktor" call to mind the designation "Doktor" which is known as the name of a small locality and which occurs quite commonly in German wine-producing regions. Whilst they refer to buildings, the words "Schloß" and "Kloster" also constitute geographical references because they are names of small localities or because they appear in the names of many such localities. Thus deception is being practised as to the geographical origin of the wine.

6 Article 3 of the UWG provides inter alia that whosoever shall, in the course of trade, for reasons of competition, give misleading information in particular as to the quality, origin or method of production of goods may be required to terminate the use of such information.

7 The proceedings were dismissed by the Landgericht Mannheim but an appeal was allowed by the Oberlandesgericht [Higher Regional Court] Karlsruhe which ordered Weigand to cease marketing or advertising in any form whatever wine bearing the descriptions "Klosterdoktor" or "Schloßdoktor".

"1. Must the word 'confusion' in Article 43 (1) of Regulation (EEC) No 355/79 of 5 February 1979 (Official Journal L 54, p. 99 et seq.) and/or the words 'misleading information' in Articles 8 (c) and 18 (c) of the regulation, as distinct from the words 'false impression' in Article 43 (2) of the regulation, be interpreted as covering only cases in which (a) purchasers may confuse a brand with another specific brand name or description (in the present case, a description of a small locality ('lage')) or (b) are confusing descriptions or misleading information to be understood as covering descriptions or information which induce the public to believe that what is being represented is the name, or part of the name, of a wine-growing local administrative area ('Weinbauort'), which does not in fact exist, or of a small wine- growing locality ('Weinbaulage'), which does not in fact exist?

2. If Question 1 (b) is answered in the affirmative: (a) May a description and presentation (in this case, labelling) which is not objectionable under Article 3 (1) none the less come within the scope of Article 43 (2), or does Article 43 (1) provide comprehensive rules for the description of products?

WEIGAND v SCHUTZVERBAND DEUTSCHER WEIN

(b) Does Article 43 of the regulation permit the application of national legislation having wider scope, for example, Article 3 UWG (Gesetz gegen den unlauteren Wettbewerb [Law against unfair competition]), in a case where consumers may be misled by a description which, whilst it cannot be confused with the name of an actually existing small locality, may give the impression of being the name of a small locality?".

1 4 To that end and in regard to the description of the wines and advertising, Regulation No 355/79 applies systematically to all practices capable of affecting fair trading.

JUDGMENT OF 25. 2. 1981 — CASE 56/80

is That is the subject-matter of Article 8 (c) and Article 18 (c) which prohibit, in the description of table wines and quality wines psr respectively, the use on labels of words, signs and illustrations which contain "false or misleading information, particularly in respect of geographical origin, vine variety, vintage year or superior quality".

16 Equivalent terms are also employed in the general provisions contained in Article 43 (1) which prohibits in the description and presentation of wines any information "liable to cause confusion as to the nature, origin and composition of the product". In addition, that article makes reference, in the case of Community wines, to the detailed requirements of Articles 2 and 12, which deal in particular with information concerning the classification, origin, bottling and characteristics of the products.

17 Article 43 (2) prohibits all practices which, by means of the description and presentation in advertising material, are liable to create "a false impression" of the products in question, that is to say to give a deceptive appearance. Since the description and presentation mentioned in Articles 8, 18 and 43 (1) form an integral part of any advertising material referred to in Article 43 (2), the expressions contained in those provisions may not be given differing interpretations.

18 Those provisions serve the same purpose, namely the prevention in the marketing of wine of all practices which are of such a nature as to create false appearances, irrespective of whether such practices give rise in the minds of those engaged in the trade or of consumers to confusion with existing products or the erroneous impression of an origin or of charac- teristics which in reality do not exist.

22 The costs incurred by the Government of the Federal Republic of Germany, the Government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

T H E COURT,

in answer to the questions referred to it by the Bundesgerichtshof by order of 19 December 1979, hereby rules:

The expression "misleading information" employed in Articles 8 (c) and 18 (c) of Regulation No 355/79 and the expressions "confusion" and "false impression" occurring in Article 43 of the same regulation must be

OPINION OF MR CAPOTORTI — CASE 56/80

Mr President, or place them on the market are Members of the Court, forbidden to describe or present them in a manner liable to cause confusion or to 1. This request for a preliminary ruling give customers a false impression as to calls for an interpretation of certain their characteristics, in particular with provisions of Council Regulation No regard to their geographical origin. The 355/79 of 5 February 1979 which laid next matter to be ascertained is whether down "general rules for the description xhe relevant Community provisions and presentation of wines and grape permit the application of other, and musts". The first matter to be established more stringent, national provisions. is the scope of the prohibition whereby persons who hold such products for sale I shall briefly summarize the facts.

1 — Translated from the Italian.