V. (CONTINUED): EXTENSION The scope of protection afforded to terms registered as TSG – which also applies to distance selling – covers “any misuse, imitation or evocation” as well as “any other practice liable to mislead the consumer” and also applies where the protected name is translated and where it is indicated as an ingredient73. In order to understand when such violations occur, it seems correct to resort to the hermeneutic canons set forth by the Court of Justice in its case law on the protection of PDOs and PGIs in similar situations.74 “Misuse” refers to the complete use of the protected term for similar products75, which tends to refer to cases where the specification is not respected. On the other hand, the notion of “evocation” (on which the Court’s attention has in fact always focused) refers to cases where the name used to designate a similar product incorporates only part of the protected term, so as to induce the consumer to think, as a reference image, of the goods benefiting from that name. For an “evocation” to be recognisable, however, it is necessary for an average consumer to actually perceive (through a sufficiently direct and unambiguous link76) the reference to the protected term, but this depends on its notoriety77. At present, there are no precedents on this matter with regard to individual TSGs, 73 Reg. (EU) No 2024/1143, cited above, Art. 68(1) and (3). 74 Court of Justice, judgment of 12 September 2007, Consorzio per la tutela del formaggio Grana Padano v OHIM-Biraghi, T-291/03, EU:T:2007:255, § 58; judgment of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola, C-87/97, EU:C:1999:115, § 25; judgment of 21 January 2016, Viiniverla Oy, C-75/2015, EU:C:2016:35; judgment of 7 June 2018, Scotch Whisky Association, C-44/17, EU:C:2018:415, § 51; Judgment of 2 May 2019, Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego, C-614/17, EU:C:2019:344; Judgment of 4 December 2019, Consorzio Tutela Aceto Balsamico di Modena, C-423/2018, EU:C:2019:1045; Judgment of 17 December 2020, Syndicat interprofessionnel de défense du fromage Morbier, C-490/2019, EU:C:2020:1043. In doctrine: F. Capelli, La tutela dei prodotti agroalimentari di qualità in Italia ed in Europa, cit., p.314.; M. Brüs, ‘Glen Buchenbach’: CJEU further clarifies the system of prohibited acts with regard to geographical indications, in EIPR, 2018, p. 746-750; J. V. Rubino, From ‘Cambozola’ to ‘Toscoro’: the difficult distinction between ‘evocation’ of a protected geographical indication, ‘product affinity’ and misleading commercial practices, in EFFL, 2017, p. 326-334; I. Carreño García, P. R. Vergano, Geographical indications, ‘Food-fraud’ and the fight against ‘Italian sounding’ products, in EJPR, 2016, p. 416. 75 Advocate General M. CAMPOS SÁNCHEZ-BORDONA, opinion delivered on 20 July 2016, Champagner Sorbet, C-393/16, ECLI:EU:C:2017:581, paragraphs 88 to 99. 76 Court of Justice, judgment of 9 September 2021, Champanillo, C-783/19, ECLI:EU:C:2021:713. See also the compliant notion of “evocation” brought by Reg. (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 on the protection of geographical indications for handicraft and industrial products, in OJEU L of 27 October 2023 ELI: http://data.europa.eu/eli/reg/2023/2411/oj, art. 40. 77 Reg. (EU) No. 2024/1143, cit., recital 35: “building on the established case-law of the Court of Justice of the European Union, evocation of a geographical indication may arise, in particular, where a link with the product designated by the registered geographical indication, including with reference to a term, sign, or other labelling or packaging device, is present in the mind of the average European consumer who is reasonably well-informed, observant and circumspect”. 341 FOODSTUFF TRADITION PROTECTION
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