German balsamic vinegar – The protected geographical indication (PGI) Protection is granted to the term "Aceto Balsamico di Modena" as a whole

PDO and PGI indication of origin Austrian Food Code

CJEU, 2 December 2019, C-432/18 – Aceto Balsamico

The name "Aceto Balsamico di Modena" (balsamic vineagar from Modena, Italy) has been registered as a protected geographical indication (PGI) since 2009. Already at that time, Germany submitted an (unsuccessful) objection to its registration because it was concerned that it would adversely affect pre-existing products marketed under the designations "Balsamessig/Aceto balsamico".

The current judgment of the CJEU is based on a dispute between "Consorzio Produzione Certificata Aceto Balsamico Modenese" (a consortium of balsamic vinegar producers from Modena) and a German vinegar producer, which markets its products as "Deutscher Balsamico" and "1. Deutsches Essig-Brauhaus, Premium, 1868 Balsamico, Rezeptur No. 3". The consortium sent the vinegar producer a letter of formal notice for allegedly infringing the PGI (see Article 13(1)(b) of Regulation (EU) No 1151/2012 on quality schemes for agricultural products and foodstuffs). In response, the producer brought an action in the German courts seeking a negative declaration of its obligation to refain from using the term. In the last instance, the German Federal Court of Justice requested a preliminary ruling from the CJEU on the question of whether the protection of the entire name "Aceto Balsamico di Modena" extends to the use of the individual non-geographical terms of the name ("Aceto", "Balsamico", "Aceto Balsamico"; German Federal Court of Justice, 12 April 2018, I ZR 253/16).

The CJEU answered this question in the negative and ruled that the name "Aceto Balsamico di Modena" is registered as a whole and protection is therefore only granted to the entire name. The protection granted does not extend to the individual non-geographical terms of the name, such as "aceto" or "balsamico", because they are common generic terms. The word "balsamico" is the Italian translation of the German adjective "balsamisch" (balsamic), which does not have a geographic connotation and – in relation to vinegar – is normally used to refer to a type of vinegar characterised by its sweet and sour taste.

Conclusion: "Deutscher Balsamico" may be admissible as a name. Caution should nevertheless be exercised when marketing a respective product. The product's appearance when taken as a whole must not deceive consumers as to its origin. Otherwise, it is deemed to be misleading (Section 2 of the Unfair Competition Act). In Austria, the Austrian Food Code, 4th edition, Chapter B 8, contains requirements relating to vinegar and balsamic vinegar.