Battle over registration of ‘absinth’ as GI continues

Switzerland

Under Swiss law (as well as under EU law), geographical denominations may be protected by a designation of origin or appellation of origin, or by a simple geographical indication (GI). As far as agricultural products and foodstuffs are concerned, protection is regulated by the Swiss Act on Agriculture, and the register is kept by the Swiss Federal Office for Agriculture.

Absinthe is a liqueur formerly made from wormwood. It is often referred to as 'la fée verte' ('the green fairy') or 'la bleue' ('the blue one'). Due to the alleged health risks associated with absinthe, several European countries banned the production and sale of absinthe for decades. In Switzerland, absinthe was banned in 1908, and the ban was lifted only in 2005.

The Association of Swiss Absinthe Producers sought to register ‘absinth’ for absinthe produced in a certain valley of the Jura of Neuchâtel (Val de Travers). The Federal Office for Agriculture registered the GI based on evidence that the denomination had been used solely for absinthe originating from that particular valley. The decision of the Office for Agriculture prompted 42 appeals by Swiss and foreign professional associations and enterprises. Three of the appeals have now been rejected by the Swiss Federal Administrative Court for procedural reasons - namely, because the appellants lacked standing to appeal (Cases B-4767/2012, B-4884/2012 and B-4888/2012, July 29 2013).

Although the three decisions will not put an end to the controversy, they cast some light on the issue of standing (or interest) to sue or appeal, particularly with regard to persons who are not immediately concerned by the decision.

As regards the appeal by a French professional association, the court held that such an association will have standing to sue or appeal if it fulfils the following three conditions:

  1. the tasks of the association include the protection of the interests of its members;
  2. such interests are common to at least a large part of its members; and
  3. each individual member of the association has, by itself, standing to sue or appeal.

In the case of the French association, condition (1) was fulfilled. With regard to condition (2), the court found that 5% of the members was not a sufficient proportion. With regard to condition (3), it was not established that the individual members of the association had exported absinthe into Switzerland. The question of whether a future or virtual interest might suffice was left open.

As regards the appeal by a European professional association, the Administrative Court held that not even condition (1) was fulfilled, since its statutes did not contain a provision expressly protecting the interests of its members in judicial proceedings.

Even the appeal of absinthe producer Pernot was not successful, since, in order to have standing to appeal, it had to have its own direct interest in amending the decision. However, it had not asserted or proven that it had exported absinthe products into Switzerland.  

Interested parties are now awaiting further decisions of the Federal Administrative Court as to the validity of the registration of 'absinth’ as a geographical indication.

Peter Heinrich, Streichenberg Attorneys-at-Law, Zurich

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