C-456/93

LANGGUTH

OPINION OF ADVOCATE GENERAL LEGER delivered on 23 March 1995 *

1. By order of 16 September 1993, the Ober- 3. The defendant markets German wines landesgericht (Higher Regional Court) bearing the quality indications 'Kabinett', Frankfurt am Main referred to the Court for 'Spätlese', 'Auslese' and 'Weissherbst' (other- a preliminary ruling under Article 177 of the wise referred to as 'quality wines produced EEC Treaty four questions on the interpreta- in a specified region' or 'German quality tion of Article 3(2) and (3) of Commission wines psr'). Regulation (EEC) N o 3201/90 of 16 Octo- ber 1990 laying down detailed rules for the description and presentation of wines and grape musts · (hereinafter 'Regulation N o 3201/90' or 'the implementing regulation') and of Article 40(3) of Council Regulation (EEC) N o 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts, 2 in order to resolve a dispute concerning the use of the terms 'Kabinen', 'Spätlese' and 'Weis- sherbst' as parts of a brand name. 4. Those quality indications are set out on the labels, first beside the German quality wine psr designation and then beside the brand name.

2. The questions have arisen in a dispute between the Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V. Frankfurt ('the plaintiff') and Privatkellerei Franz Wilhelm Langguth Erben GmbH&Co. KG ('the 5. The plaintiff, which considered that use of defendant'). those terms as parts of the brand name was contrary to Article 3(2) and (3) of Regulation N o 3201/90 and likely to mislead consumers, appealed to the Oberlandesgericht when its * Original language: French. 1 — OJ 1990 L 309, p. 1. action before the Landgericht (Regional 2 — OJ 1989 L 232, p. 13. Court) Frankfurt am Main was dismissed.

2. If Question 1 is answered in the affir- mative, is it possible to invoke, against a prohibition such as that referred to in The first and third questions Question 1, a property right of proven value acquired in good faith by the con- spicuous use of those terms without impediment as a brand name in labelling Qualitätswein mit Prädikat (as regulated for example, with respect to trade marks with a geographical reference, in Article 40(3) of Regulation (EEC) 7. In its first and third questions, the N o 2392/89)? national court essentially asks whether, in

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labelling German quality wines, Article 3 of 10. Let me now consider the relevant Com- the implementing regulation precludes the munity rules. use of the terms 'Kabinett', 'Spätlese', 'Auslese' and 'Weissherbst' as parts of a brand name in so far as they are set out in larger characters than those used to indicate the region of origin. 11. As regards the labelling of German qual- ity wines psr, Regulations Nos 2392/89 and 3201/90 apply.

Preliminary observation

13. Commission Regulation No 3201/90 lays down the detailed rules necessary for the 9. The term 'Weissherbst' is an optional sup- implementation of Regulation N o 2392/89. plementary indication traditionally used, Article 3 enumerates the terms authorized b y complementing the description of German quality wines psr. 5 6 — Chapter I. 7 — Chapter II. 8 — As regards products originating within the Community, a 3 — Council Regulation of 16 March 1987 laying down special distinction is made between table wines (Section A), quality provisions relating to quality wines produced in specified wines psr (Section B) and products other than table wines regions (OJ 1987 L 84, p. 59). and quality wines psr (Section C). 4 — Council Regulation of 19 June 1989 (OJ 1989 L 202, p. 1). 9 — Article 11(1). 5 — Article 3(3)(a), first indent, of Regulation N o 3201/90 in 10 — Article 11(2). conjunction with Article ll(2)(i) of Regulation N o 2392/89. 11 — Article 12.

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O P I N I O N OF M R LEGER — CASE C-456/93

the various Member States and regarded by 15. As regards German quality wines psr, the Community legislature as equivalent to Article 3(2) and Article 3(3)(a), first indent, of the Community term 'quality wine psr'. Regulation No 3201/90 provide:

14. The aim of the rules 12 is to supply infor- mation on the wines marketed in Commu- nity territory that is as clear, accurate and '2. The terms "Kabinett", "Spätlese", complete as possible, so as to: "Auslese", "Beerenauslese", "Trockenbeere- nauslese" and "Eiswein" shall appear in let- tering of the same type and height as the name of the specified region or, where appropriate, of the geographical unit smaller than the specified region. (a) ensure fair trading in the wine sector, u

These terms shall appear in characters which 17. It therefore follows from: are the same size as or smaller than those used for indicating the specified region.'

— Article 15(2)(a) of Regulation No 823/87 as amended,

16. Finally, Article 15(2) of Regulation N o 823/87 as amended, which also applies, pro- vides as follows: — Article ll(l)(b) of Regulation No 2392/89, and

— Article 3(1) 1 7 and (2) of Regulation N o '2. Without prejudice to any additional terms which may be allowed by Community 3201/90, and national laws, and subject to national provisions on the wines in question being observed, the specific terms traditionally used which are referred to in paragraph 1 shall be the following: viewed in conjunction with one another, that the terms 'Kabinett', 'Spätlese' and 'Auslese' are indications of quality which, together with the terms relating to the origin of the wines and the designation 'Qualitätswein mit Prädikat':

(a) Federal Republic of Germany:

(a) form part of the description of German quality wine psr, and an indication of the origin of the wine, accompanied by the terms "Qualitätswein" or "Qualitätswein mit Prädikat", together with one of the following terms: "Kabinett", "Spätlese", "Auslese", "Beerenauslese", (b) must compulsorily be shown on the "Trockenbeerenauslese" or "Eiswein"; labelling of German quality wine psr in

— the first subparagraph of Article 15(2) of Regulation N o 823/87 as amended,

— Article ll(2)(i) of Regulation No 2392/89, and 20. The terms 'Kabinett', 'Spätlese', 'Auslese' and 'Weissherbst' are set out at the foot of the labels in characters of the same type and size as the name of the specified region or smaller geographical unit. Thus, for example, on one of the disputed labels, — Article 3(1) and (3) of Regulation N o the group of terms 'Qualitätswein mit 3201/90, Prädikat Spätlese Rheinhessen Bereich Wonnegau' appears as follows:

viewed in conjunction with one another, that the term 'Weissherbst' is a supplementary- indication of quality which, together with a specific term traditionally used, (a) on the first line, the quality indication 'Spätlese' beside the designation 'Quali- tätswein mit Prädikat', and

18 — The list of regions producing quality wines is set out in Annex II to Council Decision 94/184/EC of 24 January (a) is employed to describe a German qual- 1994 concerning the conclusion of an Agreement between the European Community and Australia on trade in wine ity wine psr, and (OJ 1994 L 86, p. 1).

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25. Secondly, the wording of the rule in Article 3 of Regulation No 3201/90 seems t o me to be unequivocal. The Community leg- 22. The difficulty lies — and this is the crux islature sought to regulate the lettering of of the matter — in the fact that the terms these indications only where they form part 'Kabinett', 'Spätlese', 'Auslese' and 'Weissh- of the description of German quality wines erbst' reappear next to the brand name of the psr. Its intention was that the various terms wines, in the middle of the labels, as follows: used in combination to describe quality 'Erben Kabinett', 'Erben Spätlese', 'Erben wines psr should be set out in a uniform Auslese' and 'Erben Weissherbst', and they manner without one of the components of do so in characters approximately three such descriptions being set apart from the times larger than those used to indicate the others, so as to avoid any risk of confusion name of the region, or smaller geographical on the part of Community consumers, espe- unit, of origin. I should add that those brand cially those who are not nationals of the names are used to describe the correspond- Member State producing the wine in ques- ing wines. tion.

23. Should such a practice be held urdawtul* 26. An examination of Article 3 Let me say at once that I think not, tor the of Regulation N o 3201/90, especially following reasons.

20 — Directive to approximate the laws of the Member States 19 — See the list of regions producing German quality wines psr, relating to trade marks (OJ 1989 L 40, p. 1). ibid. 21 — Article 3(4).

22 — Article 3(1) provides: 'The terms 'quality wine produced in a specified region" or "quality wine psr" or an equivalent term in another official Community language or, where appropriate: — "Qualitätswein" and "Qualitätswein mit Prädikat",

referred to in Article 15(2) of Regulation (EEC) N o 823/87, shall appear on the label in lettering not larger than that indicating the specified region. 29. In so far as the quality indications 'Kab- 23 — Article ll(2)(c) of Regulation N o 2392/89. inett', 'Spätlese' and 'Auslese', together with 24 — Article 3(l)(g) provides: ' 1 . The following shall not be reg- the indications concerning the origin of the istered or if registered shall be liable to be declared invalid: wines and the designation 'Qualitätswein mit (g) trade marks which are of such a nature as to deceive Prädikat', as well as the term 'Weissherbst', the public, for instance as to the nature, quality or geographical origin of the goods or service;'. together with a specific term traditionally

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used, form part of the description of a qual- 31. Thirdly, is the use of those terms likely ity wine psr, 2 5 it follows from the first to mislead consumers or cause confusion? indent of Article 40(2)(b) that they cannot be used as components of a brand name if they are likely to be confused by consumers with all or part of the description of a quality wine psr.

32. In my view, it is for the national court to determine whether a term is likely to mislead or confuse consumers. The national court informs us that in their view it does not. This That would undoubtedly be the case if the tallies with the view put forward by Advo- quality indication used as a part of a brand cate General Elmer in his Opinion of name did not correspond to the intrinsic 9 March 1995 in Case C-46/94 Ministère qualitative characteristics of the quality wine Public et Institut National des Appellations psr in question. For example, the words d'Origine v Michèle Voisine, now pending. 26 'Erben Kabinett' could not be the brand name of a 'Qualitätswein mit Prädikat Spätlese Rheinhessen Bereich Wonnegau'.

35. In my view, the Community legislature did not intend to lay down a rule to the effect that the geographical origin of a qual- ity wine psr is to be the quality criterion determining the consumer's choice of prod- (a) an exhaustive list enumerating the spe- uct. Therefore, in contrast to the Commis- cific terms traditionally used which are sion's position, I doubt whether an argument considered equivalent to Community may be derived from the specific provisions terms, 32 of Article 3(2) and (3) of Regulation No 3201/90 in support of the view that the rule whereby the lettering of the terms 'Kabinett', 'Spätlese', 'Auslese' and 'Weissherbst' is reg- ulated constitutes a general principle of strict application to be applied in trade mark mat- ters. (b) an exhaustive enumeration of manda- tory and optional terms, 33

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37. Contrary to the Commission's argu- with the need to protect producers o n ment, the rationale behind Article 12 of their territory against distortions of Regulation N o 2392/89, contained in the competition'; 36 preamble to that regulation, is not to lay down a general principle whereby 'every- thing that is not authorized is prohibited', but rather, it would seem, the reverse.

(b) 'Whereas, in view of the nature of p r o - duction conditions in the different wine-growing areas and of traditional practices in some Member States, provi- 38. After explaining the option that was sions should be made to enable the taken in framing the rules on the description Member States, in respect of the prod- and presentation of quality wines psr: ucts obtained on their territory, either to make mandatory some information which is optional under Community provisions, to prohibit it or to limit its use', 37

'Whereas the Community rules on the description and presentation of wines and grape musts are to a large extent based on the national rules formerly applied by the the Community legisUture explains the pur- Member States', 35 pose of the rules:

and stating the difficulties which would be encountered: (a) '... with the aim of reconciling these dif- ferent approaches as far as possible and of avoiding too divergent interpreta- tions ...'; 3S

41. Fifthly and lastly, it must be emphasized that the brand name of a wine and its description differ in their definition and pur- (b) '... it should ... be laid down as a princi- pose. ple that only the details specified in the rules in question or in the relevant implementing rules are permitted for the description of wines and grape musts'; 43 42. Thus, a brand name presupposes the conjoint use of signs, words for example, 40 — Sixth recital. 41 — Seventh recital. 42 — Fifth recital. 43 — Ibid. 44 — Seventh recital.

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which are capable of distinguishing products. 44. The practice of the defendant, which Thus, a priori, the legitimate aim of the consists in using as parts of its brand names owner of a brand name, an aim moreover quality indications which do not conform to which conforms to the very definition of a dimensions which are, moreover, regulated trade mark, 45 is to 'hook' consumers, or in by way of exception, does not seem to me to other words to attract their attention. The involve any risk of misleading the public, general limit on the right to create and regis- since those indications are consistent with the ter trade marks is set by the Community leg- intrinsic qualities of the product. For that rea- islature. 46 son, I suggest that the Court answer the first and third questions referred by the national court in the negative.

43. By contrast, the aim pursued by the Community legislature in the description of a The second and fourth questions quality wine psr is to enable the public to be precisely, clearly and correctly informed as to the intrinsic characteristics of the product or to qualify the latter. 47 Under Article 1 of Regulation N o 823/87, 'quality wines psr' are wines which comply with the require- ments of that regulation, with those laid down by implementing regulations, and with those laid down by national rules. If follows from that provision viewed in conjunction with Articles 11 and 12 of Regulation N o 45. By these questions, the national court 2392/89 that, in the final analysis, the margin seeks essentially to ascertain the scope of the of freedom given to producers of quality derogation provided for in Article 40(3) of wines psr in the various Member States is Regulation N o 2392/89. very restricted.

'By way of derogation from point (b) of the first subparagraph of paragraph 2, the holder of a registered trade mark for a wine or a grape must which is identical: It does not deal with the case in point, because the case concerns German quality wines psr whose brand names are not identi- — to the name of a geographical unit cal to the name of a geographical unit smaller smaller than a specified region used to than a specified region. As for the scope of describe a quality wine psr the derogation provided for by Article 40(3) of Regulation N o 2392/89, in so far as that provision is contrary to the rationale under- lying these Community rules, the general principle to be applied is the one consistently endorsed by the case-law of the Court 48 in the most diverse areas of activity, whereby may, even if he is not entitled to use such a any derogation from fundamental Commu- name pursuant to the first subparagraph of nity rules must be strictly interpreted and paragraph 2, continue to use that trade mark applied.

4 8 . I n conclusion, for the reasons given above, I suggest that the C o u r t should r e p l y t o t h e q u e s t i o n s referred b y the O b e r l a n d e s g e r i c h t Frankfurt am M a i n as fol- lows:

(1) A r t i c l e 3(2) of C o m m i s s i o n Regulation ( E E C ) N o 3201/90 of 16 O c t o b e r 1990 laying d o w n detailed rules for the d e s c r i p t i o n a n d p r e s e n t a t i o n of wines

48 — For a recent statement of the general principle laid down by the Court of Justice of the European Communities, see the judgment in Case C-328/92 Commission v Spain [1994] ECR 1-1569.