The reproduction of a dark central horizontal line on a cheese constitutes an infringement of the “Morbier” PDO for a cheese that does not have this designation

Paris Court of Appeal, November 18^th, 2022, RG n°21/16539

The recent decision of the Paris Court of Appeal concludes the long legal saga concerning the “Morbier” PDO.

In this case, the “Syndicat interprofessionnel de défense du fromage Morbier” accused the “Société Fromagère du Livradois” of infringing the “Morbier” PDO and of committing acts of unfair and parasitic competition by marketing, under the name “Montboissier”, a cheese with the visual appearance of the product covered by this PDO, but not benefiting from it, by the presence of a dark line dividing the cheese horizontally.

The CJEU issued a ruling (CJEU, December 17^th, 2020, C-490/19), in which it noted that the protection of PDOs should no longer be understood as relating solely to the name, but that it can also relate to the appearance of the product, when it is particularly distinctive, which can mislead the consumer as to the true origin of the product.

The Court of Cassation (Cass. Com, April 14^th, 2021, n°17-25.822) followed the lessons of this decision, by censuring a decision of the Court of Appeal in which it was argued that the PDO regulation did not aim at protecting the appearance of a product or its characteristics described in the specifications.

In the referral decision rendered on November 18^th, the Court of Appeal had only to follow the rules laid down by the supreme courts.

Based on consumer surveys, the Court estimated that the public in the presence of “Montboissier” will have in mind, as a “reference image”, the cheese of the “Morbier” PDO.

It therefore considered that the dark central horizontal line constituted a reference characteristic of the “Morbier” PDO, and that the use of this distinctive characteristic, combined with the use of the shape and appearance of the PDO, constituted an infringement of the “Morbier” name.

Therefore, the use of the appearance of a product protected by a PDO could now be considered wrongful.