Federal Administrative Court reverses 'absinthe' PGI decision

Switzerland

In 2006 an association of absinthe producers from Val-de-Travers (canton Neuchâtel) applied for protection of the terms 'Absinthe', 'Fée verte' ('green fairy') and 'La Bleue' ('The Blue') as protected geographical indications (PGIs).

In 2012 the Ministry for Agriculture allowed the application, despite opposition by numerous parties. Protection of the terms as PGIs meant that only absinthe from Val-de-Travers (and environs) could be legally called 'absinthe' in Switzerland.

A number of producers of absinthe (both Swiss and French) not situated in Val-de-Travers appealed the ruling to the Federal Administrative Court. The court, in a decision of August 8 2014, reversed the decision and denied protection for the terms at issue (Decision B-4820/2012).

The court reasoned that the relevant (general) public would understand the terms 'Absinthe', 'Fée verte' and 'La Bleue' as generic terms for a specific type of beverage, namely a spirit containing extracts of artemisia absinthium L. According to a consumer survey, consumers (outside of Neuchatel) spontaneously associated the terms with Val-de-Travers: 21% of consumers for 'Absinthe', 33% for 'Fée verte' and 35% for 'La Bleue'. More importantly, however, the most frequent association for 'Absinthe' was with Canton de Jura (23%). With aided recall, the numbers reached about 50%. The numbers for consumers in the Canton of Neuchatel were much higher.

The court found a number of methodological flaws in the survey evidence, which led it to attribute no or very little evidentiary weight to it. The court came to the conclusion that the applicant had not met its burden of proving that 'Absinthe', 'Fée verte' and 'La Bleue' were not generic, and therefore dismissed the application.

The decision is not final and can be appealed to the Federal Supreme Court.

Mark Schweizer, Meyerlustenberger Lachenal, Zurich

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