Food Law Digest - third edition 2014



Bird & Bird's Food & Beverage Group is delighted to present the third edition of the Food Law Digest in 2014.

In this issue, we report on a number of decisions dealing with the interface between trade mark protection and geographical indications as well as health claims and labelling of products in a number of jurisdictions. We also report on the recent CJEU decision on Apple's retail trade mark application for its retail store layout and its implications for retailers in the food and beverage sector.

We hope you will enjoy reading this selection of interesting and informative articles. Please click on each title for more information.

Armand Killan and Mark Abell
Joint Heads of the Food & Beverages Group

In this issue: China, Czech Republic, EU, France, Italy, Poland, Slovakia, Sweden, UAE, UK


China's baby food sector fed with harsher regulations
Estella Tsai, Shanghai

Baby food, particularly infant formula, has been an increasing concern and heated topic in China since the 2008 infant formula scandal caused by Sanlu, a Chinese-foreign dairy products company, who tainted its products with illegal additives which caused illness in over a thousand infants and the death of two babies.

In response, the Chinese regulators have been working hard in the past five years to strengthen food regulations particularly in the sector of infant formula as well as nutritional additives.
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Czech Republic

Podravka's first victory in the trade mark battle
Andrea Jarolímková, Prague

In May 2014 Croatian food company Podravka, who historically have a great reputation in the Czech Republic for their spicy products, won a legal battle concerning unfair competition and violation of its trade mark rights in the Czech Republic. Podravka, operating in the Czech Republic through the company Podravka – Lagris a.s., is a leader in the Czech spice market with a market share of about 46% in 2013. Podravka's products are known for its typical packing design in a light blue colour with a picture of an old cook with a moustache.
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Health claims and risk factors: the General Court of the EU sets some playing field limits
Nicolas Carbonelle, Brussels

In early 2012, two professors of the Leibniz University in Hanover filed an application for annulment of Regulation No 1170/2011 "refusing to authorise certain health claims made on foods and referring to the reduction of disease risk" . On 30 April 2014, the General Court of the EU dismissed their action (T-17/12).

The facts that gave rise to this case date back to 2008, when the two professors submitted a health claim for approval to the German Bundesamt für Verbraucherschuts und Lebensmittelsicherheit, i.e., the German competent authority for the authorisation of health claims. The claim they submitted was: "regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance". The scope of the application was proposed to fall under a health claim referring to disease risk reduction, with the general population as the target population of the claim.
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Organic or not organic: That is the question!
Thomas Urband, Christian Lindenthal, Munich

Recently, the Bavarian Administrative Court in Munich (Bayerisches Verwaltungsgericht) requested a preliminary ruling from the CJEU concerning a product called ‘Blutquick’ - a fruit juice mixture which mainly contains organically farmed ingredients but also non-organic mineral and vitamin additives. The question referred was whether such a drink could still be advertised and marketed as ‘organic’? Advocate General Sharpston has now delivered her opinion on this case.
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Retail store layouts capable of trade mark protection, says CJEU
Victoria Hobbs, Hilary Atherton, London

In a decision handed down on 10 July 2104, the CJEU ruled that the layout of Apple's stores may be registrable as a trade mark. The decision could be significant not only for retailers but also for the food and beverage sector, particularly businesses operating a franchise model.
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CJEU provides guidance on distinctive elements within composite marks
Henry Elliott, London

The CJEU has dismissed an appeal by Bimbo relating to Bimbo's application for a CTM registration for BIMBO DOUGHNUTS in Class 30 for 'pastry and bakery products, specially doughnuts' (C-591/12) finding that there was a likelihood of confusion with an earlier national mark for DOGHNUTS.
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KORNSPITZ - CJEU specifies requirements for trade mark genericism
Linda Brouwer, The Hague

On 6 March 2014 the CJEU rendered a decision in a tasty case concerning bread. In Backaldrin Osterreich The Kornspitz Company v Pfahnl Backmittel GmbH (C-409/12) the CJEU assessed the validity of the trade mark 'KORNSPITZ' for bakery goods in Class 30 and provided guidance on the circumstances under which a trade mark may become generic.
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Salame Felino may be protected under national Italian legislation
Tom Darvill, London 

The CJEU has ruled on the circumstances in which Article 2 of Regulation 2081/92 (as amended by Regulation 535/97) (the "Regulation") will protect a geographical designation that is not covered by a Community registration (C-35/13).

Salame Felino is a salami named after the town of Felino, in the province of Parma, Italy. The Associazione fra produttori (the "Associazione") brought proceedings in the Parma District Court against Kraft Jacobs Suchard SpA ("Kraft"), for unfair competition on the basis that Kraft had offered for sale a salami with the name 'Salame Felino', which had in fact been produced in Lombardy, Italy.
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French Court of Appeal provides insight into public health code provisions on advertising practices for alcoholic beverages
Rebecca Delorey, Paris

On 3 April 2014, the Court of Appeal of Versailles rendered an interesting decision on the interpretation of article L3323-4 of the French public health code which regulates the contents of advertisements for alcoholic beverages. Advertisements can refer to the place of production, awards and distinctions obtained by the product, geographical indications as well as "objective references" relating to its colour and gustatory characteristics. However, advertising messages that stray too far from the objective characteristics of an alcoholic beverage and present an image of alcohol consumption as too glamorous can be held by French courts to violate the provisions of the public health code.
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The French Decree n°2014-797 of 11 July 2014 provides clarifications on use of the “fait maison” label by restaurants
Rebecca Delorey, Vincent Robert, Paris

On 11 July 2014, the French government enacted the Decree n°2014-797 on the use of the “fait maison” (home-made) label by restaurants and take-away establishments. The new Decree became applicable on 15 July 2014 but will only be enforced by French authorities as of 1st January 2015.
The aim of the Decree is to better inform consumers and reward restaurants which prepare the menu offerings on-site.


The importance of GIs: the defeat of trade marks clashing with GIs
Linda Brugioni, Milan

Geographical indications ("GIs") are names or expressions indicating a geographical area, adopted for designating a product originating from such area, provided with peculiar characteristics deriving from said territory. As GIs are also names and/or signs, their use should be coordinated with trade marks. Generally speaking, the European and Italian legislation grants GIs a broad protection over trade marks containing or evoking them. This approach can be seen in two recent Italian decisions.
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The heat of the ice war
Marta Koremba, Krzysztof Korwin-Kossakowski, Warsaw

May 2014 saw the completion of one of the fiercest trade mark wars fought in Poland in recent years. In February 2007, Smyk Global Assets GmBH ("Smyk"), a subsidiary of the state-owned Polish company Smyk sp. z o.o. (a producer of children's goods), filed an opposition with the Polish Patent Office ("PPO") against the application for the trade mark "LODY SMYK NORDIS" for ice-cream in Nice Class 30, owned by the Polish company Nordis Chłodnie Polskie sp. z o.o. ("Nordis") – a medium-sized ice cream producer domiciled in Poland.
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Potable water: human right or business article (controversial amendment to the Slovak water law)
Katarína Bujňáková, Bratislava

The Ministry of Environment of the Slovak Republic has recently brought a controversial amendment to the Slovak water law which would allow the export and sale of Slovak potable water abroad. This was approved by the Slovak Government in July 2014 and has been delivered to the Slovak Parliament for the further discussions and final approval.
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The Swedish National Food Agency proposes new labelling and disclosure rules for non-prepacked food
David Nilsson, Isabella Palmgren, Stockholm

The Swedish National Food Agency (the "NFA") has issued a legislative proposal regarding the labelling and disclosure of information on non-prepacked food (the "Proposal"). The Proposal is part of a legislative package proposed by the NFA in the wake of Regulation 1169/2011 (the "Food Information Regulation") which is applicable in December 2014. The Proposal applies to all non-prepacked foods intended for consumers, including foods provided by mass caterers and foods which are intended for mass caterers and is to be published in the NFA's own Code of Statutes, LIVSFS (previously SLVFS).
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United Arab Emirates

Food Labelling and Import Requirements in the UAE
Melissa Murray, Abu Dhabi

There are a number of laws and local council regulations setting out the food labelling and importation requirements in the United Arab Emirates (UAE). Whilst the requirements for food labelling are set out in various federal commercial and consumer protection laws, each individual Emirate is responsible for implementing such laws.

All products for sale in the UAE must be in Arabic and often this requirement is met by placing Arabic text stickers close to the product barcodes. Stickers however must be first approved by the local municipality and depending on the type of product, specific information must be listed.
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Copycat Packaging - A member of the UK's CoolBrands® list gets 'Saucy' over its Trade Marks
Toby Sears, London

The Saucy Fish Co. has brought an action in the English High Court against Aldi for trade mark infringement and passing-off over Aldi's packaging of its own brand of fish products. The products in question both display vacuum packed fish on black plastic with a sleeve showing the brand and featuring a cut out fish shape displaying the product’s sauce.
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Seminar Report: An Appetite for IP
Toby Bond, Rebekah Sellars, London

Protecting your intellectual property has never been more important in the fast moving food and beverage sector. To offer some advice on how to grow, nurture and protect brands in this sector, Bird & Bird recently hosted its "An Appetite for IP" seminar. Held in the Reading Room at the Law Society in London, representatives from a wide range of food and beverage companies joined us for an afternoon of discussion chaired by IP partner Peter Brownlow, covering a wide range of issues currently affecting those with FMCG brands in the food and beverage sector. A lot of ground was covered but we present a short summary of some of the highlights from each presentation.
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Plain packaging plans advance in the UK and Ireland whilst the WTO dispute over Australia's laws also heats up
Katherine Stephens, Toby Bond, London

On 10 June 2014 the Irish Government announced it will be the first country in the European Union to introduce plain packaging for tobacco products and published draft legislation which requires that brand names are only present in a standard font and excludes any other graphic or text elements by which manufacturers can express their brand identity. The Irish announcement was shortly followed on 26 June 2014 by the UK Government's launch of a further consultation on plain packaging and draft Regulations setting out how such proposals would be implemented in UK law.
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English High Court dismisses Judicial Review of MHRA's decision to not treat glucosamine-containing food supplements as medicines
Rachel Fetches, London

In a Judgment handed down on 22 May 2014, the English High Court refused an application for judicial review of the UK's Medicine and Healthcare Products Regulatory Agency ("MHRA") decision not to categorise all glucosamine-containing products ("GCP") as medicines.
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