Restaurant can use Champagneria name, says appellate court
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The Borgating Appellate Court has affirmed a decision of the Oslo District Court in a dispute between the restaurant Champagneria and two French trade organizations over the name of the restaurant (Case 08-117063ASD-BORG/02, April 27 2009).
The restaurant Champagneria, situated in Oslo, Norway, opened in 2005 with a business idea based on champagne and sparkling wine. The Comité Interprofessionnel du Vin Champagne (an organization of winegrowers in the French region of Champagne) and the Institut National de l’Origine et de la Qualité (a French governmental agency) believed that use of the name Champagneria by the restaurant weakened the geographical indication 'champagne' and constituted unfair competition.
The dispute raised two main issues:
- whether the geographical indication 'champagne' enjoys protection as intellectual property in Norway; and
- if so, whether the secondary indication 'Champagneria' can be used as the name of a restaurant.
In particular, the issue before the Oslo District Court was whether use of the name Champagneria violated the Norwegian Marketing Act - that is, whether use of the name was misleading in light of the fact that the restaurant sold other sparkling wines, such as cava.
The court reached its decision in light of Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) on the protection of geographical indications, as well as the relevant provisions of the Norwegian Marketing Act and the Trademarks Act.
The court first held that the issue of the protection of the secondary indication 'Champagneria' did not concern the provision of goods, but the offering of services to customers. To obtain protection of the geographical indication 'champagne', the French trade organizations needed to show that that the term:
- was a collective mark; and
- was sufficiently recognized as an indicator of origin.
The court ruled that although 'champagne' is undoubtedly recognized as an indicator of origin in some countries, this was not the case in the whole of Norway. The court also stated that 'champagne' is often used in a generic sense in the Norwegian language.
In addition, the court held that there is a distinction between geographical indications and the French 'appellations d’origine' (appellations of origin) - that is, designations that relate to products with distinct geographical conditional qualities or characteristics linked to the environment of that specific geographical location. 'Champagne' is a protected appellation d’origine in France and specific regulations determine which sparkling wines may use this appellation. Since Champagneria also sold other sparkling wines, the trade associations alleged that use of the name Champagneria was misleading.
The court found that there was no breach of the regulations against unfair competition and that use of the name was not misleading. It emphasized that the name Champagneria indicated only that the restaurant sold champagne. However, it was not necessary to sell onlychampagne to avoid confusion among consumers. The fact that champagne constituted 15% of the total sales was held to be sufficient.
In addition, the court found that there was no likelihood of confusion between the names Champagne and Champagneria. The court referred to a decision of the Norwegian Supreme Court in which it was held that the mark MOZELL was distinctive and thus registrable, despite its similarity with the geographical indication Mosel for German wine.
Finally, the court stressed that Champagneria's business idea actually promoted champagne in Norway, instead of weakening the geographical indication 'champagne'. Furthermore, the restaurant distinguished between champagne and other sparkling wines in its marketing material, which contributed to promoting champagne as a higher quality wine. The court pointed out that the restaurant's activities, instead of misleading customers, educated them about champagne.
The decision of the Oslo District Court has now been upheld on appeal. The restaurant is thus allowed to continue using the name Champagneria, despite the protection afforded to geographical indications under the TRIPs Agreement. It is still unclear whether the decision will be appealed to the Supreme Court. Therefore, the decision is not legally binding and the final outcome remains to be seen.
Felix Reimers and Siw Lyséll Dølvik, Advokatfirmaet Grette DA, Oslo
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