HP Bulmer Ltd v Bollinger SA
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP |
| Judgment Date | 22 May 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0522-4 |
| Date | 22 May 1974 |
| Court | Court of Appeal (Civil Division) |
The Master of the Rolls (Lord Denning),
Lord Justice Stamp and
Lord Justice Stephenson.
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Whitford on 27th November, 11th and 14th December 1973.
Mr. A.C. SPARROW, Q.C., and Mr. JOHN BURRELL, Q.C. (instructed by Messrs Monier-Williams and Keeling) appeared on behalf of the appellant defendants.
Mr. DAVID HIRST, Q.C., Mr. WILLIAM ALDOUS and Mr. S. THORLEY (instructed by Messrs. Ashurst, Morris, Crisp & Co.) appeared on behalf of the Respondent Plaintiffs.
In Francs the name Champagne is well protected by law. It denotes a sparkling wine produced in a well favoured district of France, called the Champagne district. The vineyards are about a hundred miles east of Paris, around Rheiras and Epernay. The wine has a high reputation all the world over.
In England, too, the name Champagns is well protected by law when used for wine. As far back as 1956 some intruders brought into England a somewhat similar wine. It had been produced in the Costa Brava district of Spain. They marketed it under the name "Spanish Champagne". The French growers and shippers brought an action to stop it. They succeeded. Mr. Justice Danckwerts held that the French growers had a goodwill connected with the word Champagne; and that the Spanish intruders had been guilty of dishonest trading, see Bollinger v. Costa Brava (1960) Ch, 262, 1961 1 W.L.R. 271. That case opened up a new field of English law. It gave a remedy for unfair competition. It was applied in the Sherry Case (1969) R.P.C. 1, when Mr. Justice Cross said at page 23: "The decision went beyond the well trodden paths of passiug-off into the area of 'unfair trading' or 'unfair competition'. It was followed recently by Mr. Justice Foster in the Scotch Whisky Case (1970) 1 W.L.R. 917.
That case in 1960 concerned wine — wine made from grapes — for which the French are so famous. Now we are concerned with oider and perry. Cider from apples. Perry from pears. We English do know something about these. At any rate, those who come up from Somerset or Herefordshire.
For many years now some producers of oider in England have been marketing some of their drinks as "champagne cider" and "champagne perry'. When it started the French prcducers of champagne took no steps to stop it. It went on for a long time.But in 1970 the French produoers brought an action against an English firm, claiming an injunction. They sought to stop the use of the name Champagne on these drinks. To counter this, two of the biggest producers of oider in England on 8th Ootober, 1970 brought an action against the French producers. They claimed declarations that they were entitled to use the expression "Champagne cider" and "Champagne perry'. They said that they had used those expressions for 70 or 80 years in England; that many millions of bottles had been marketed under those descriptions; and that the Government of the United Kingdom had recognised it in the various regulations. They said further that the French producers had acquiesced in the use and were estopped from complainlng.
In answer the French producers of Champagne claimed that the use of the word "Champagne" in connection with any beverage other than Champagne was likely to lead to the belief that such beverage was or resembled Champagne, or was a substitute for it, or was in some way connected with Champagne. They claimed an injunction to stop the English producers from using the word "Champagne" in connection with any beverage not being a wine produced in the Champagne distrlot of France.
2 AFTER ENGLAND JOINED THE COMMON MARKET
Thus far it was a straightforward action for passing-off. it was to be determined by well-known principles of English law. But on 1st January, 1973, England joined the Common Market. On 26th March, 1973, the French produoers amended their pleading so as to add these clalms:-
"9A Following the adhesion of the United Kingdem to the European Economic Community the use of the word 'Champagne' in connection with any beverage other than Champagne will contravene EuropeanCommunity Law." They relied on Regulation 816/76/Article 30 and Regulation 817/70 Article 628/12 and 13.
By a further amendment they counterclaimed for:
"A declaration that the use by the English produoers of the expression 'Champagne Cider' and "Champagne Perry' in relation to beverages other than wine produced in the Champagne District of France is contrary to European Community Law."
3 REFERENCE TO LUXEMBOURG
Now the French producers ask that two points of European Community Law should be referred to the European Court at Luxembourg. Shortened they are:-
(A) Whether the use of the word "Champagne" in connection with any beverage other than Champagne is a contravention of the provisions of European Community Law.
(B) Whether a national court of a member state should refer to the Court of Justice of the European Community such a question as has been raised herein.
The Judge at first instance refused to refer either question at this stage. He said that he would try the whole case out before he came to a decision on it.
The French producers appeal to this Court.
4 THE REGULATIONS
The Community Regulations relied upon by the French produoers are these:
Regulation 816/70 Article 30
"Member States may subject the use of a geographical mark for describing a table wine to this condition, in particular, that that wine is obtained wholly from certain wine-producing areas expressly designated and that it comes exclusive from the territory marked out in an exact manner, whose name it bears."
"Wine" means "the product obtained exclusively from whole or partial alccholio fermentation of fresh grapes, whether or not crushed, and of grape must."
Regulation 817/70 Article 12
The Community reference q.w.p.s.r. (quality wine produced in a specific region) is a traditional specific reference, used in member States to describe certain wines, may only be used for wines complying with the provisions of this regulation and with those adopted in application of this Regulation.
The specific traditional reference for France is: "Appelation d'origine contrclee. Champagne et vin delimite de qualite superieure."
Article 13
"Each Member State shall ensure the inspection and proteotion of q.w.p.s.r. marketed in accordance with this Regulation."
The French producers claim that, under those regulations, the name Champagne is their own special property. It must not be applied to any wine which is not produced in the Champagne District of France. So much the English producers concede. But the French producers go further. They say that the name Champagne must not be applied to any beverage other than their Champagne. It must not, therefore, be applied to oider or perry, even though they are not wines at all. The English producers deny this. They say that the Regulations apply only to wines- the product of grapes — and not to oider or perry — the product of apples and pears.
This is obviously a point of the first importance to the French wine trade and to the English oider trade. It depends no doubt on the true interpretation of the Regulations. It seems that three points of principle arise:
First, By which Court should these Regulations be interpreted? By the European Court at Luxembourg? or by the national Coupes of England?
Second. At what stage should the task of interpretation be done? Should it be done now before the case is tried out in the English Court? or at a later stage after the other issues have been determined?
Third. In any case, whichever be the Court to interpret them, what are the principles to be applied in the interpretation of the Regulations? If we were to interpret the Regulations as if they were an English statute, I should think they would apply only to wines, not to oider or perry. But, if other principles were to be applied, the result might be different. That is indeed what the French producers say. They contend that the European Court can fill in any gaps in the Regulations. So that the words can be extended so as to forbid the use of the word "Champagne" on oider or perry. That is, no doubt, the reason why the French producers want the point to be referred here and now to the European Court.
To answer these questions, we must consider several points of fundamental importance.
To make the discussion easier to understand, I will speak only of the interpretation of "the Treaty", but this must be regarded as including the regulations and directions under it. I will make reference to the English Courts beoaue I am specially concerned with them: but this must be regarded as including the national Courts of any Member State.
5 THE IMPACT OF IHE TREATY ON ENGLISH LAW
The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries ofthe Common Market besides curselves. The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affeoted by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any...
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