The new taboo words of Europe


Author: Eddie Powell


According to press reports, the European Commission this week granted Black Forest Gateau, also known as Schwarzwalder Kirschtorte, protected status. The cake, which comes from Germany’s Baden-Württenberg region, takes its name from the “kirsch” from the cherries grown in the Black Forest. The reports suggested that the European Commission had ruled that any dessert that wants to be called a “Black Forest Gateau” had to stay true to the original ingredients and must include this kirsch which is made from the sour cherries grown only in the Black Forest region.

Since reporting the decision, we have been informed that the press reports were untrue. There has been no such decision, or even an application to protect the recipe of Black Forest Gateau.

The EU legislation is intended to provide a system for the protection of food and drink names on a geographical or traditional recipe basis, where consumers can rely on the name as guaranteeing the food has the desired geographical or other qualities. The classic example is “Champagne”, but the legislation also protects Pizza Napoletana, Cornish Pasties and Gruyère. Where the name of that food or drink is granted protected status, then it is given legal protection against imitation throughout the EU. There are three EU schemes in place:

  • protected designation of origin (PDO) applies to products where the place of origin of the product or its components is the defining factor;
  • protected geographical indication (PGI) applies to products where the place of production is important; and
  • traditional speciality guaranteed (TSG) for products which use traditional methods of production.

The aim of the legislation cannot be faulted; traditional IP remedies such as registered trade marks were difficult to use where no one person could be said to own the rights to a name. However, some of the decisions extending protection to recipes have been questionable.

The fact that the Black Forest Gateau decision was a myth is welcome news and a relief for food retailers, including restaurants and cafés, who could have found themselves in court for using the wrong spirit in their cake.

For further information, please contact Eddie Powell, partner, Fladgate LLP (epowell@fladgate.com)

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