Münchner Weißwurst may come from outside Munich, says court
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The German Federal Patent Court has refused to grant protection to the term 'Münchner Weißwurst' as a geographical indication and designation of origin for sausages under Council Regulation 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (Case 30 W (pat) 22/06, February 17 2009).
In 2003 the society for the protection of the Münchner Weißwurst (German for 'Munich white sausage') filed an application with the German Patent and Trademark Office to register the term 'Münchner Weißwurst' as a geographical indication. If successful, production of the Weißwurst, along with the use of the term 'Münchner Weißwurst', would have been limited to butchers located in the city of Munich and its administrative district.
The office held that the term 'Münchner Weißwurst' was eligible for protection as a geographical indication. Several competitors and federations of producers appealed.
The Federal Patent Court held that the term 'Münchner Weißwurst' was generic under Article 3(1) of the regulation. It stated that in line with recent decisions of the European Court of Justice (Feta I (Joint Cases C-289/96, C-293/96 and C-299/96; Feta II (Joint Cases C-465/02 and C-466/02); Parmesan (Case C-132/05)), it is necessary to take the following factors into account in assessing the generic character of a name:
- the places of production of the product concerned;
- the consumption of that product;
- how it is perceived by consumers; and
- the existence of national legislation specifically relating to that product.
The court found a 1972 announcement of the city of Munich stating that sausages produced in Munich according to a special recipe may be called Original/Edite Münchner Weißwurst. This announcement proves that Weißwurst has been produced in other parts of Bavaria for decades. In fact, today 95% of Münchner Weißwurste are produced in other parts of Bavaria.
Further, the court stated that Münchner Weißwurst is considered as a regional speciality in the whole of Bavaria. Since sausages produced in Munich as well as those produced outside the city are sold under the name Münchner Weißwurst, consumers do not consider this term as a geographical indication and designation of origin.
The court concluded that while Original Münchner Weißwurst may be produced only in Munich, Münchner Weißwurst can be produced elsewhere.
Friederike Bahr, Beiten Burkhardt, Munich
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