Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. v Privatkellerei Franz Wilhelm Langguth Erben GmbH & Co. KG (C-456/93)

Contents

Judgment of the Court (Sixth Chamber)29 June 1995^noteIn Case C-456/93,REFERENCE to the Court under Article 177 of the EEC Treaty by the Oberlandesgericht Frankfurt am Main (Germany) for a preliminary ruling in the proceedings pending before that court betweenZentrale zur Bekämpfung unlauteren Wettbewerbs e. V.andPrivatkellerei Franz Wilhelm Langguth Erben GmbH&Co. KGTHE COURT (Sixth Chamber),composed of: F. A. Schockweiler, President of the Chamber, G. F. Mancini, C. N. Kakouris, J. L. Murray (Rapporteur) and G. Hirsch, Judges,Advocate General: P. Léger,Registrar: H. A. Rühi, Principal Administrator,after considering the written observations submitted on behalf of:— Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V., by Hans Heinrich Kerst, of the Frankfurt am Main Bar,— Privatkellerei Franz Wilhelm Langguth Erben GmbH&Co. KG, by Hubert Schmidt, of the Trier Bar,— the Commission of the European Communities, by Ulrich Wölker, of the Commission's Legal Service, acting as Agent,having regard to the Report for the Hearing,after hearing the oral observations of the Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V., represented by Hans Heinrich Kerst, Thomas Kittner and Brigitte Kerst-Würkner, all of the Frankfurt am Main Bar, of Privatkellerei Franz Wilhelm Langguth Erben GmbH&Co. KG, and of the Commission at the hearing on 2 February 1995,after hearing the Opinion of the Advocate General at the sitting on 23 March 1995,gives the following

Judgment

1By order of 16 September 1993, lodged at the Court Registry on 6 December 1993, the Oberlandesgericht (Higher Regional Court) Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Article 40(3) of Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts (OJ 1989 L 232, p. 13) and of Article 3 of Commission Regulation (EEC) No 3201/90 of 16 October 1990 laying down detailed rules for the description and presentation of wines and grape musts (OJ 1990 L 309, p. 1).

2The questions arose in a dispute between the Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V., whose registered office is in Frankfurt am Main (‘the plaintiff’), and Privatkellerei Franz Wilhelm Langguth Erben GmbH&Co. KG (‘the defendant’).

3The defendant markets Qualitätsweine mit Prädikat (German quality wines bearing quality indications) which bear the indications ‘Kabinett’, ‘Spätlese’ and ‘Auslese’, and also a Qualitätswein b. A. (German quality wine produced in a specified region) under the designation ‘Weissherbst’, all of which are quality wines produced in a specified region (hereinafter ‘quality wines psr’). Those indications, and the designation ‘Portugieser 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 of a geographical unit smaller than the specified region. In addition, in the middle of those labels, in characters which are approximately three times larger and which catch the eye at once, there appear the brand names ‘Erben Kabinett’, ‘Erben Spätlese’, ‘Erben Auslese’ and ‘Erben Weissherbst’.

4Under Paragraph 1 of the Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition) of 7 June 1909, the plaintiff brought an action before the Landgericht (Regional Court) Frankfurt am Main for an order restraining the defendant from using those brand names.

5The plaintiff considers, first, that use of the terms ‘Kabinett’, ‘Spätlese’, ‘Auslese’ and ‘Weissherbst’ as parts of those brand names, the lettering used for those terms, and the larger character size are contrary to Article 3(2) and (3) of Regulation No 3201/90. Article 3(2) requires the terms ‘Kabinett’, ‘Spätlese’ and ‘Auslese’ to be set out in lettering of the same type and height as the name of the specified region or, where appropriate, of a geographical unit smaller than the specified region. Article 3(3) concerns, in particular, the term ‘Weissherbst’, which is to be set out in characters the same size as, or smaller than, those used for indicating the specified region.

6Secondly, the defendant is alleged to have infringed Article 40 of Regulation No 2392/89, whereby brand names may not contain any words, parts of words, signs or illustrations which are likely to cause confusion or mislead the persons to whom they are addressed. The brand names used by the defendant, by highlighting the terms in question, are said to give consumers the impression that the products are of a particular quality, which is not in fact the case.

7The Landgericht dismissed the action, whereupon the plaintiff appealed to the Oberlandesgericht (Higher Regional Court) Frankfurt am Main. In that court's view, the terms ‘Kabinett’, ‘Spätlese’, ‘Auslese’, and ‘Portugieser Weissherbst’, when set out at the foot of the labels in characters of the same type and height as the name of the specified region or of a geographical unit smaller than the specified region, comply with Article 3 of Regulation No 3201/90. As for the repetition of those terms in larger characters of a different type as parts of the brand name used on the labels, that practice does not mislead consumers and is not therefore contrary to Article 40 of Regulation No 2392/89.

8However, because it had doubts as to the interpretation of the above provisions, the Oberlandesgericht Frankfurt am Main decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:1. Must Article 3(2) of Regulation (EEC) No 3201/90 be interpreted as meaning that, in labelling quality wines (Qualitätsweine mit Prädikat), repetition on the label of the terms “Kabinett”, “Spätlese” or “Auslese” — in addition to their prescribed use (in lettering of the same type and height as the name of the specified region or of a geographical unit smaller than the specified region) — in different lettering with higher letters, particularly in a conspicuous manner as part of a brand name, is prohibited?2. If Question 1 is answered in the affirmative, is it possible to invoke, against a prohibition such as that referred to in Question 1, a property right of proven value acquired in good faith by the conspicuous 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) No 2392/89)?3. Must Article 3(3)(a), first indent, in conjunction with the second subparagraph of Article 3(3) of Regulation (EEC) No 3201/90, be interpreted as meaning that, in the case of quality wines psr from Germany (“Qualitätsweine b. A.”), repetition on the label of the term “Weissherbst” — in addition to its use in characters which are the same size as or smaller than those used for indicating the specified region — in higher letters, particularly in a conspicuous manner as part of a brand name, is prohibited?4. If Question 3 is answered in the affirmative, is it possible to invoke, against a prohibition such as that referred to in Question 3, a property right of proven value acquired in good faith by the conspicuous use of the term “Weissherbst” without impediment as a brand name in labelling the corresponding wines (as regulated for example, with respect to trade marks with a geographical reference, in Article 40(3) of Regulation (EEC) No 2392/89)?’

Questions 1 and 3

9In order to reply to Questions 1 and 3, it is necessary to examine the legislative context in which Article 3 of Regulation No 3201/90 is set.

10Article 15(1) and (2)(a) and the second indent of the first subparagraph of Article 15(7) of Council Regulation (EEC) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions (OJ 1987 L 84, p. 59), as amended by Council Regulation (EEC) No 2043/89 of 19 June 1989 (OJ 1989 L 202, p. 1), provide:1. The Community terms listed in the second subparagraph or the specific terms traditionally authorized, as provided for in paragraph 2, by the national legislation of the producer Member State, to designate particular wines may be used, respectively, only for the wines listed in Article 1(2)....2. Without prejudice to any additional terms which may be allowed by Community 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 the first subparagraph of paragraph 1 shall be the following:(a) Federal Republic of Germany: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”, “Trockenbeerenauslese” or “Eiswein”;7. No wine referred to in Article 1(2) may be marketed unless it bears:— one of the Community terms referred to in the second subparagraph of paragraph 1 or one of the specific terms traditionally used referred to in paragraph 2 ....’

11Article 72 of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (OJ 1987 L 84, p. 1) provides for the adoption of general rules on the description and presentation of certain wine products. On that basis, the Council adopted Regulation No 2392/89.

12The fifth recital in the preamble to Regulation No 2392/89 states that, in order to avoid excessively divergent interpretations, ‘it was deemed appropriate to lay down fairly comprehensive rules on description’ and that ‘to ensure that these rules are effective, it should also be laid down as a principle that only the details specified in the rules in question or in the relevant implementing rules are permitted for the descriptions of wines and grape musts’.

13Regulation No 2392/89 then draws a distinction between mandatory information necessary to identify the product and optional information designed mainly to indicate the special properties of the product or to characterize it.

14Article 11(1) of Regulation No 2392/89 lays down rules whereby the mandatory information is to appear in the description on the labelling. Such information includes, in particular, the terms referred to in the second indent of the first subparagraph of Article 15(7) of Regulation (EEC) No 823/87 (Article ll(l)(b)).

15Article 11(2) of Regulation No 2392/89 provides that the description on the labelling may be supplemented by certain information, in particular by a brand name, in accordance with the conditions laid down in Article 40 of that regulation (Article ll(2)(c)), and by additional details of a traditional kind, provided they are used in the manner prescribed by the laws of the producer Member State and are entered in a list to be adopted (Article ll(2)(i)).

16Under Article 12(1) of Regulation No 2392/89, the information referred to in Article 11 is, apart from some exceptions which are not relevant in this case, the only information allowed for the description on the label of a quality wine psr.

17Regulation No 3201/90 was adopted in order to lay down detailed rules, specifically required for implementing the principles defined by Regulations Nos 822/87, 823/87 and 2392/89. In Article 1, it lays down detailed rules for the appearance of the mandatory and optional information on the label.

18Article 3(1), (2) and (3) of that regulation provide:1. 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) No 823/87, shall appear on the label in lettering not larger than that indicating the specified region....2. The terms “Kabinett”, “Spätlese”, “Auslese”, “Beerenauslese”, “Trockenbeerenauslese” and “Eiswein” shall appear in lettering 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.3. The terms referred to in Article ll(2)(i) of Regulation (EEC) No 2392/89 which may supplement those set out in paragraph 1 shall be as follows:(a) for German quality wines psr:— “Weissherbst”,...These terms shall appear in characters which are the same size as or smaller than those used for indicating the specified region.’

19It follows from that legislation as a whole that use of the terms ‘Kabinett’, ‘Spätlese’ and ‘Auslese’ as mandatory information is regulated by Article 3(2) of Regulation No 3201/90 and use of the term ‘Weissherbst’ as optional information is regulated by Article 3(3)(a) in conjunction with the second subparagraph of Article 3(3) of that regulation.

20By contrast, use of the terms ‘Kabinett’, ‘Spätlese’, ‘Auslese’ and ‘Weissherbst’ as parts of a brand name is governed by Article ll(2)(c) of Regulation No 2392/89, which refers to the conditions laid down in Article 40 of that regulation.

21By laying down distinct rules concerning the use of brand names on labelling in Regulation No 2392/89, the Community legislature evinced its intention to limit the scope of Article 3 of Regulation No 3201/90 to the use of terms as information contained in the description of a quality wine psr, and not as parts of a brand name.

22That interpretation also follows from the actual wording of that article, which makes no reference to the composition and presentation of brand names.

23Furthermore, by providing that the information referred to in Article 11 of Regulation No 2392/89 is the only information allowed for the description on the label of a quality wine psr, Article 12(1) leaves open the possibility of supplementing the description of a quality wine psr with a brand name.

24With regard to that possibility, Article 40(2) of Regulation No 2392/89 provides that brand names may not contain any words, parts of words, signs or illustrations which are likely to cause confusion or mislead the persons to whom they are addressed (Article 40(2)(a)), or which are liable to be confused by the persons to whom they are addressed with all or part of the description of a quality wine psr (Article 40(2)(b)).

25The question thus arises whether either of those cases applies when the brand name on the product label includes, in characters three times as large, a word which already appears on the same label as information forming part of the appellation of the quality wine psr.

26In that respect, the plaintiff and the Commission argue that the addition of the disputed terms on the label in a particularly conspicuous manner may create confusion or mislead consumers, especially those resident outside Germany.

27On that point, it should be noted first of all that the Community legislation, and Article 40 of Regulation Ño 2392/89 in particular, does not impose any restriction concerning the lettering of the characters and the size of a brand name in relation to the indication on the label of the name of the specified region or of a geographical unit smaller than the specified region.

28Accordingly, the fact that a brand name is presented in a conspicuous manner does not mean that it is likely to cause confusion or mislead the persons to whom it is addressed, even if it contains a word that has been designated by the rules in question as information which may be used in the appellation of a quality wine psr.

29Moreover, the wording of Article 40 of Regulation No 2392/89 shows that it is aimed primarily at prohibiting the untruthful use of brand names, a point which is not at issue in this case.

30The answer to Questions 1 and 3 must therefore be that:1. Article 3(2) of Regulation No 3201/90 must be interpreted as not precluding the labelling of quality wines (‘Qualitätsweine mit Prädikat’) from repeating the terms ‘Kabinett’, ‘Spätlese’ or ‘Auslese’ — in addition to their prescribed use (in lettering of the same type and height as the name of the specified region or of a geographical unit smaller than the specified region) — in different lettering with higher letters, particularly in a conspicuous manner as part of a brand name.2. Article 3(3 )(a), first indent, in conjunction with the second subparagraph of Article 3(3) of Regulation No 3201/90 must be interpreted as not precluding the repetition on the label, in the case of German quality wines produced in specified regions (‘Qualitätsweine b. A.’), of the term ‘Weissherbst’ — in addition to its use in the same lettering as that used for indicating the specified region — in larger letters, particularly in a conspicuous manner as part of a brand name.

Questions 2 and 4

31Having regard to the answers to Questions 1 and 3, there is no need to examine Questions 2 and 4.

Costs

32The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Sixth Chamber),in answer to the questions referred to it by the Oberlandesgericht Frankfurt am Main by order of 16 September 1993, hereby rules:

1.Article 3(2) of Commission Regulation (EEC) No 3201/90 of 16 October 1990 laying down detailed rules for the description and presentation of wines and grape musts must be interpreted as not precluding the labelling of quality wines (‘Qualitätsweine mit Prädikat’) from repeating the terms ‘Kabinett’, ‘Spätlese’ or ‘Auslese’ — in addition to their prescribed use (in lettering of the same type and height as the name of the specified region or of a geographical unit smaller than the specified region) — in different lettering with higher letters, particularly in a conspicuous manner as part of a brand name.

2.Article 3(3)(a), first indent, in conjunction with the second subparagraph of Article 3(3) of Regulation (EEC) No 3201/90 must be interpreted as not precluding the repetition on the label, in the case of German quality wines produced in specified regions (‘Qualitätsweine b. A.’), of the term ‘Weissherbst’ — in addition to its use in the same lettering as that used for indicating the specified region — in larger letters, particularly in a conspicuous manner as part of a brand name.

Delivered in open court in Luxembourg on 29 June 1995.