Is That Champagne in Your Sorbet? Prove It

https://www.nytimes.com/2017/12/20/business/champagne-aldi-european-court.html

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In a fight that pitted Champagne producers against a discount supermarket, the European Union Court of Justice ruled on Wednesday that the retailer can sell its Champagner Sorbet — but only if it can prove that Champagne is a distinct part of its flavor.

The retailer, Aldi, a German discounter, has built its customer base on in-house labels. The sorbet appeared in Aldi’s freezers in December 2012 as part of a limited Christmas promotion. It contained 12 percent Champagne.

But the Champagne producers, who are fiercely protective of their luxury brand, contended that Champagner Sorbet was exploiting the vaunted reputation of Champagne, which comes from a region of France.

The Comité Interprofessionnel du Vin de Champagne, which represents the Champagne producers, said the sorbet did not conform to the specifications required of Champagne products, and so should not be allowed to use that name.

The Comité Champagne took Aldi to court in 2012.

The French sparkling wine has protected designation of origin status, or P.D.O., from the European Union. It is a mark of quality that tells consumers that their glass of bubbly comes from the region of France with the same name, not from a producer of a knockoff sparkling wine.

The European court took up the case so that it could clarify the conditions under which a food operator could use the protected term Champagne.

On Wednesday, the E.C.J. decided that Aldi was not taking “undue advantage” of the reputation of Champagne. In other words, it wasn’t simply slapping the word “champagne” on the label in the hopes of riding on Champagne’s prestigious coattails.

But now that the European Union’s highest court has decided under what circumstances the term Champagne can be used, Aldi still has to prove to a German appeals court that Champagne was a core aroma or flavor in the product.

This is unlikely to lead to any wine-tasting in court, said Michael A. Fammler, an expert in intellectual property law and a partner who works in Germany for the law firm Baker McKenzie. Aldi is more likely to turn to consumer surveys or expert witnesses to make its case, he said.

The company declined to comment on Wednesday, citing the continuing legal proceedings. A spokeswoman for the Comité Champagne said on Wednesday evening that the association did not yet have any comment on the case.

Aldi faces a difficult task.

“To come up with one phrase that describes all Champagne, it’s just not going to happen,” said David Richardson, the regulatory and commercial affairs director at the Wine and Spirit Trade Association in Britain.

To stipulate exactly what flavors make Champagne would be “very crude indeed because the variations are huge, and I suppose that’s why it’s an interesting problem for the German court.”

And establishing that the wine in the sorbet is Champagne, rather than any other sparkling wine, will be tricky.

“I’m not sure you’d get any of the toasty or brioche notes from Champagne once you make it into a sorbet,” said Victoria Burt, the research and development manager at the Wine and Spirit Education Trust in Britain.

And this may not be the last case of this type to flare up.

“It concerns all cases where there’s an allusion to a protected origin,” Mr. Fammler said. “It’s really ingredient cases; that’s a new test.”

The Comité Champagne has taken on companies before for their use of the term Champagne. It sued a Belgian brewery that tried to highlight the sparkling-wine-like qualities of a beer by advertising it as “champagnebier,” but the E.C.J. decided in 2007 that it was allowed in certain cases.

“They are very hot on brand protection,” Ms. Burt said. “They don’t like other products using their established premium reputation, understandably, to boost the reputation of other products that aren’t really related at all.”