Commission regulation (EC) No 607/2009 (repealed)Show full title

SECTION 4 Protection

Article 40 General protection

1. If an application satisfies the conditions laid down in Article 54(1) of Regulation (EC) No 479/2008 and in Articles 31 and 35 and is not rejected under Articles 38 and 39, the traditional term shall be listed in Annex XII to this Regulation.

2. The traditional terms listed in Annex XII, are protected only in the language and for the categories of grapevine products claimed in the application, against:

(a) any misuse even if the protected term is accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar;

(b) any other false or misleading indication as to the nature, characteristics or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to it;

(c) any other practice liable to mislead the consumer, in particular to give the impression that the wine qualifies for the protected traditional term.

Article 41 Relationship with trademarks

1. Where a traditional term is protected under this Regulation, the registration of a trademark, which corresponds to one of the situations referred to in Article 40, shall be refused if the application for registration of the trademark does not concern wines qualified to use such a traditional term and is submitted after the date of submission of the application for protection of the traditional term to the Commission and the traditional term is subsequently protected.

Trademarks registered in breach of the first subparagraph shall be declared invalid on application in accordance with the applicable procedures as specified by Directive 2008/95/EC of the European Parliament and of the Council(1) or Council Regulation (EC) No 40/94(2).

2. A trademark, which corresponds to one of the situations referred to in Article 40 of this Regulation, and which has been applied for, registered or established by use, if that possibility is provided for by the legislation concerned, in the territory of the Community before 4 May 2002 or before the date of submission of the application for protection of the traditional term to the Commission, may continue to be used and renewed notwithstanding the protection of the traditional term.

In such cases the use of the traditional term shall be permitted alongside the relevant trademark.

3. A name shall not be protected as a traditional term, where in the light of a trademark's reputation and renown, such protection is liable to mislead the consumer as to the true identity, nature, characteristic or quality of the wine.

Article 42 Homonyms

1. A term, for which an application is lodged, wholly or partially homonymous with that of a traditional term already protected under this Chapter shall be protected with due regard for local and traditional usage and the risk of confusion.

A homonymous term which misleads consumers as to the nature, quality or the true origin of the products shall not be registered even if the term is accurate.

The use of a protected homonymous term shall be subject to there being a sufficient distinction in practice between the homonym protected subsequently and the traditional term already listed in Annex XII, having regard to the need to treat the producers concerned in an equitable manner and not to mislead the consumer.

2. Paragraph 1 shall apply mutatis mutandis for traditional terms protected before 1 August 2009, which are partially homonymous with a protected designation of origin or geographical indication or a wine grape variety name or its synonym listed in Annex XV.

Article 43 Enforcement of the protection

For the purposes of the application of Article 55 of Regulation (EC) No 479/2008, in case of illegal use of protected traditional terms, competent national authorities, on their own initiative or at the request of a party, take all measures to stop the marketing, including any export, of the products concerned.

(1)

OJ L 299, 8.11.2008, p. 25.

(2)

OJ L 11, 14.1.1994, p. 1.