Right to use “Champagner Sorbet” – BARDEHLE PAGENBERG succeeds before Munich Appeal Court

Press release of December 18, 2014

In its judgment of October 16, 2014, the Munich Appeal Court reversed the lower court judgment and decided that a frozen product containing 12 % of Champagne may be called “Champagner Sorbet”.

The “Comité Interprofessionnel du Vin de Champagne”, which is the representative of the Champagne producers, had sued Aldi Süd for marketing a “Champagner Sorbet”, a frozen sorbet product containing 12 % of Champagne. Aldi, in turn, gave third party notice to the producer of the product, the Belgian company Galana N.V., which intervened on the side of the defendant.  The Comité justified its complaint by asserting a breach of Article 103 of EU Regulation 1308/2013, the so-called “Common Market Organization Regulation”. This Regulation contains provisions for the protection of designations of origin and geographical indications for products of viticulture. The Comité argued that the protection of the designation was “absolute” and that deception or unfairness were not a prerequisite of the claim. Aldi and Galana invoked the right to use a correct and non-misleading trade denomination. According to the defendants, the use of “Champagne” for a sorbet containing Champagne was justified.

By its judgment of March 18, 2014 – 33 O 13181/13 -, the Munich I District Court had allowed the complaint. In its judgment of October 16, 2014, the Munich Appeal Court, following the appeal lodged by Galana N.V., reversed the judgment of the District Court and dismissed the complaint. Although there was no dispute about the reputation of the designation of origin “Champagne”, which enjoys comprehensive protection, the Court held that the protection is nevertheless granted neither abstractly nor absolutely. Rather, for prohibiting the designation “Champagne” for products other than genuine Champagne, unfair exploitation of the reputation is a prerequisite. Such unfairness is, according to the Court, not given in the present case; rather, the defendants can invoke a justified interest in using the designation “Champagner Sorbet” – a product generally known also otherwise from recipe books etc. Claims under German Unfair Competition Law or German Trademark Law as well as the 1960 German-French Agreement on Appellations of Origin were also dismissed based on the same grounds.

Leave was granted to appeal to the German Federal Supreme Court.

Representatives of Comité Interprofessionnel du Vin de Champagne:
Dr. Michael Nieder (Attorney-at-Law)
Dr. Carola Onken (Attorney-at-Law)

Representatives of ALDI Einkauf GmbH & Co. OHG Süd:
Schmidt, von der Osten & Huber
Dr. Notker Lützenrath, LL.M. (Attorney-at-Law)

Representatives of Galana N.V.:
<link de team detail person hartwig-henning-1.html>Dr. Henning Hartwig (Attorney-at-Law, Partner)
<link de team detail person von-muehlendahl-alexander-1.html>Professor Dr. Alexander von Mühlendahl, LL.M. (Attorney-at-Law)

Munich Appeal Court (29th Senate):
Rainer Zwirlein
(Presiding Judge)



Henning Hartwig
Attorney-at-Law (Rechtsanwalt), Partner*

Henning Hartwig

Alexander von Mühlendahl
Attorney-at-Law (Rechtsanwalt)

Alexander von Mühlendahl