“Article 114 Marketing standards for milk and milk products 1. Foodstuffs intended for human consumption may be marketed as milk and milk products only if they comply with the definitions and designations laid down in Annex XII. 2. Without prejudice to exemptions provided for in Community law and to measures for the protection of public health, milk falling within CN code 0401 intended for human consumption may only be marketed within the Community in accordance with Annex XIII and, in particular, with the definitions set out in point I thereof.”
“Article 121 Adoption of standards, implementing rules and derogations The Commission shall establish the detailed rules for the application of this Chapter, which may in particular relate to: … (b) as regards the definitions and designations that may be used in the marketing of milk and milk products in accordance with Article 114(1): (i) drawing up and, where necessary, supplementing the list of the products referred to in the second subparagraph of point III(1) of Annex XII, on the basis of the lists sent to it by the Member States; …”
“ANNEX XII DEFINITIONS AND DESIGNATIONS IN RESPECT OF MILK AND MILK PRODUCTS REFERRED TO IN ARTICLE 114(1) I. Definitions For the purposes of this Annex: (a) ‘marketing’ means holding or display with a view to sale, offering for sale, sale, delivery or any other manner of placing on the market; (b) ‘designation’ means the name used at all stages of marketing. II. Use of the term ‘milk’ 1. The term ‘milk’ means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom. However, the term ‘milk’ may be used: (a) for milk treated without altering its composition or for milk the fat content of which is standardised under Article 114(2) in conjunction with Annex XIII; (b) in association with a word or words to designate the type, grade, origin and/or intended use of such milk or to describe the physical treatment or the modification in composition to which it has been subjected, provided that the modification is restricted to an addition and/or withdrawal of natural milk constituents. 2. For the purposes of this Annex, ‘milk products’ means products derived exclusively from milk, on the understanding that substances necessary for their manufacture may be added provided that those substances are not used for the purpose of replacing, in whole or in part, any milk constituent. The following shall be reserved exclusively for milk products. (a) the following designations: … (ii) cream, (iii) butter, … (viii) cheese, … (b) designations or names within the meaning of Article 5 of Directive 2000/13/EC of the European Parliament and of the Council of20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, actually used for milk products. 3. The term ‘milk’ and the designations used for milk products may also be used in association with a word or words to designate composite products of which no part takes or is intended to take the place of any milk constituent and of which milk or a milk product is an essential part either in terms of quantity or for characterisation of the product. 4. The origin of milk and milk products to be defined by the Commission shall be stated if it is not bovine. III. Use of designations in respect of competing products 1. The designations referred to in point II of this Annex may not be used for any product other than those referred to in that point. However, this provision shall not apply to the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product. 2. In respect of a product other than those described in point II of this Annex, no label, commercial document, publicity material or any form of advertising as defined in Article 2(1) of Council Directive 84/450/EEC of10 September 1984 concerning misleading and comparative advertising or any form of presentation, may be used which claims, implies or suggests that the product is a dairy product. However, in respect of a product which contains milk or milk products, the designation ‘milk’ or the designations referred to in the second subparagraph of point II(2) of this Annex may be used only to describe the basic raw materials and to list the ingredients in accordance with Directive 2000/13/EC. IV. Lists of products; communications 1. Member States shall make available to the Commission an indicative list of the products which they regard as corresponding in their territory to the products referred to in the second subparagraph of point III(1). Member States shall, where necessary, make additions to this list subsequently and inform the Commission thereof. …”
“ANNEX XIII MARKETING OF MILK FOR HUMAN CONSUMPTION REFERRED TO IN ARTICLE 114(2) I. Definitions For the purposes of this Annex: (a) ‘milk’ means the produce of the milking of one or more cows; (b) ‘drinking milk’ means the products referred to in point III intended for delivery without further processing to the consumer; … II. Delivery or sale to the final consumer 1. Only milk complying with the requirements laid down for drinking milk may be delivered or sold without processing to the final consumer, either directly or through the intermediary of restaurants, hospitals, canteens or other similar mass caterers. 2. The sales descriptions to be used for those products shall be those given in point III of this Annex. Those descriptions shall be used only for the products referred to in that point, without prejudice to their use in composite descriptions. …”
“(1) The Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled ‘The CAP towards 2020: Meeting the food, natural resources and territorial challenges of the future’ sets out potential challenges, objectives and orientations for the Common Agricultural Policy (‘the CAP’) after 2013. In the light of the debate on that Communication, the CAP should be reformed with effect from1 January 2014 . That reform should cover all the main instruments of the CAP, including Council Regulation (EC) No 1234/2007. In view of the scope of the reform, it is appropriate to repeal that Regulation and to replace it with a new regulation on the common organisation of the markets in agricultural products. The reform should also, as far as possible, harmonise, streamline and simplify the provisions, particularly those covering more than one agricultural sector, including by ensuring that non-essential elements of measures may be adopted by the Commission by way of delegated acts. … (64) The application of standards for the marketing of agricultural products can contribute to improving the economic conditions for the production and marketing and the quality of such products. The application of such standards is therefore in the interests of producers, traders and consumers. … (76) For certain sectors and products, definitions, designations and sales descriptions are important elements for determining the conditions of competition. Therefore, it is appropriate to lay down definitions, designations and sales descriptions for those sectors and/or products, which should only be used in the Union for the marketing of products which comply with the corresponding requirements.”
“Article 1 Scope 1. This Regulation establishes a common organisation of the markets for agricultural products, which means all the products listed in Annex I to the Treaties with the exception of the fishery and aquaculture products as defined in Union legislative acts on the common organisation of the markets in fishery and aquaculture products. …”
“Article 73 Scope Without prejudice to any other provisions applicable to agricultural products, as well as to the provisions adopted in the veterinary, phytosanitary and food sectors to ensure that products comply with hygiene and health standards and to protect animal, plant and human health, this Section lays down the rules concerning marketing standards. Those rules shall be divided between obligatory rules and optional reserved terms for agricultural products.”
“Article 78 Definitions, designations and sales descriptions for certain sectors and products 1. In addition, where relevant, to the applicable marketing standards, the definitions, designations and sales descriptions provided for in Annex VII shall apply to the following sectors or products: … (c) milk and milk products intended for human consumption; … 2. The definitions, designations or sales descriptions provided for in Annex VII may be used in the Union only for the marketing of a product which conforms to the corresponding requirements laid down in that Annex. …”
“Article 91 Implementing powers in accordance with the examination procedure The Commission may adopt implementing acts: (a) establishing the list of milk and milk products referred to in the second paragraph of point 5 of Part III of Annex VII …, on the basis of indicative lists of products which Member States regard as corresponding, in their territory, to those provisions and which Member States shall send to the Commission; …”
“Article 230 Repeals … 2. References to Regulation (EC) No 1234/2007 shall be construed as references to this Regulation … and be read in accordance with the correlation table set out in Annex XIV to this Regulation.”
“ANNEX VII DEFINITIONS, DESIGNATIONS AND SALES DESCRIPTION [SIC] OF PRODUCTS REFERRED TO IN ARTICLE 78 For the purposes of this Annex, the ‘sale [sic] description’ means the name under which a foodstuff is sold, within the meaning of Article 5(1) of Directive 2000/13/EC, or the name of the food, within the meaning of Article 17 of Regulation (EU) No 1169/2011. … PART III Milk and milk products 1. ‘Milk’ means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom. However, the term ‘milk’ may be used: (a) for milk treated without altering its composition or for milk the fat content of which is standardised under Part IV; (b) in association with a word or words to designate the type, grade, origin and/or intended use of such milk or to describe the physical treatment or the modification in composition to which it has been subjected, provided that the modification is restricted to an addition and/or withdrawal of natural milk constituents. 2. For the purposes of this Part, ‘milk products’ means products derived exclusively from milk, on the understanding that substances necessary for their manufacture may be added provided that those substances are not used for the purpose of replacing, in whole or in part, any milk constituent. The following shall be reserved exclusively for milk products. (a) the following names used at all stages of marketing: … (ii) cream, (iii) butter, … (viii) cheese, … (b) names within the meaning of Article 5 of Directive 2000/13/EC or Article 17 of Regulation (EU) No 1169/2011 actually used for milk products. 3. The term ‘milk’ and the designations used for milk products may also be used in association with a word or words to designate composite products of which no part takes or is intended to take the place of any milk constituent and of which milk or a milk product is an essential part either in terms of quantity or for characterisation of the product. 4. As regards milk, the animal species from which the milk originates shall be stated, if it is not bovine. 5. The designations referred to in points 1, 2 and 3 may not be used for any product other than those referred to in that point. However, this provision shall not apply to the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product. 6. In respect of a product other than those described in points 1, 2 and 3 of this Part, no label, commercial document, publicity material or any form of advertising as defined in Article 2 of Council Directive 2006/114/EC (1) or any form of presentation may be used which claims, implies or suggests that the product is a dairy product. However, in respect of a product which contains milk or milk products, the designation ‘milk’ or the designations referred to in the second subparagraph of points 2 of this Part may be used only to describe the basic raw materials and to list the ingredients in accordance with Directive 2000/13/EC or Regulation (EU) No 1169/2011. PART IV Milk for human consumption falling within CN code 0401 I. Definitions For the purposes of this Annex: (a) ‘milk’ means the produce of the milking of one or more cows; (b) ‘drinking milk’ means the products referred to in point III intended for delivery without further processing to the consumer; … II. Delivery or sale to the final consumer 1. Only milk complying with the requirements laid down for drinking milk may be delivered or sold without processing to the final consumer, either directly or through the intermediary of restaurants, hospitals, canteens or other similar mass caterers. 2. The sales descriptions to be used for those products shall be those given in point III of this Annex. Those descriptions shall be used only for the products referred to in that point, without prejudice to their use in composite descriptions. …”
“Article 17 Name of the food 1. The name of the food shall be its legal name. In the absence of such a name, the name of the food shall be its customary name, or, if there is no customary name or the customary name is not used, a descriptive name of the food shall be provided. … 4. The name of the food shall not be replaced with a name protected as intellectual property, brand name or fancy name”
“Whereas: (2) Regulation (EC) No 1234/2007 establishes the principle that the descriptions milk and milk products may not be used for milk products other than those in described point II of Annex XII thereto. As an exception, this principle is not applicable to the description of products the exact nature of which is known because of traditional use and/or when the designations are clearly used to describe a characteristic quality of the product. (3) The Member States must notify to the Commission indicative lists of the products which they deem to meet, within their own territories, the criteria for the abovementioned exception. A list should be made of such products on the basis of the indicative lists notified by the Member States. That list should include the names of the relevant products according to their traditional use in the various languages of the Union, in order to render these names usable in all the Member States, provided they comply with the provisions of Directive 2000/13/EC of the European Parliament and of the Council of20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs. … (5) Following the accessions to the European Union of 2004 and 2007, some of the new Member States have submitted lists of products which they deem to meet, within their own territories, the criteria for the abovementioned exception. The list in Annex I to this Decision should therefore be completed by including the names of the products from the new Member States, in the relevant languages, which can benefit from the exception. … Article 1 The products corresponding, on the territory of the Union, to the products referred to in the second subparagraph of point III(1) of Annex XII to Regulation (EC) No 1234/2007 are listed in Annex I to this Decision. ANNEX I List of the products referred to in the second subparagraph of point III(1) of Annex XII to Regulation (EC) No 1234/2007 … Coconut milk ‘Cream …’ or ‘Milk …’ used in the description of a spirituous beverage not containing milk or other milk products or milk or milk product imitations (for example, cream sherry, milk sherry) … Cream filled biscuits (for example, custard cream, bourbon cream, raspberry cream biscuits, strawberry cream, etc.) Cream filled sweets or chocolates (for example, peppermint cream, raspberry cream, crème egg) … Creamed coconut and other similar fruit, nut and vegetable products where the term ‘creamed’ describes the characteristic texture of the product … Cream or creamed soups (for example, cream of tomato soup, cream of celery, cream of chicken, etc.) …”
“15. The VSW is a German association whose responsibilities include combatting unfair competition. TofuTown is a company which produces and distributes vegetarian/vegan foodstuffs. It promotes and distributes, among others, pure plant-based products under the designations ‘Soyatoo tofu butter’, Plant cheese, ‘Veggie Cheese’, ‘Cream’ and other similar designations. 16. Taking the view that the promotion by TofuTown of those pure plant-based products infringes the competition rules, the VSW brought an action for a prohibitory injunction against that company before the Landgericht Trier (Regional Court, Trier, Germany), relying on an infringement of Paragraph 3a of the Law on Unfair Competition, in conjunction with Annex VII, Part III, points 1 and 2, and Article 78 of Regulation No 1308/2013. 17. TofuTown maintains, to the contrary, that its advertising of plant-based products with the designations at issue does not infringe those provisions of EU law, since the way in which consumers understand those designations has changed massively in recent years, and that it does not use terms such as ‘butter’ or ‘cream’ in isolation, but always in association with words referring to the plant-based origin of the products concerned, for example ‘Tofu butter’ or ‘Rice Spray Cream’.”
“23. … it is clear from the wording of point 1 that the term ‘milk’ cannot, in principle, be lawfully used to designate a purely plant-based product, since milk is, within the meaning of that provision, ‘an animal product’, which is also clear from Annex VII, Part III, point 4, to Regulation No 1308/2013, which provides that, as regards milk, the animal species from which the milk originates are to be stated, if it is not bovine, and Article 78(5) of that regulation, which empowers the Commission to adopt delegated acts to specify the milk products in respect of which the animal species from which the milk originates is to be stated, if it is not bovine. 24. Furthermore, it is clear from that wording that clarifying or descriptive terms indicating the plant-based origin of the product concerned, such as soya or tofu, at issue in the main proceedings, do not fall within the terms which may be used with the designation ‘milk,’ in accordance with point 1, second subparagraph (b), since the alterations to the composition of milk that the additional words may designate under that provision are those which are limited to the addition and/or subtraction of its natural constituents, which does not include a total replacement of milk by a purely plant-based product.”
“33. Furthermore, although according to Annex VII, Part III, point 5, first subparagraph, to Regulation No 1308/2013, the names referred to in points 1, 2 and 3 of Part III cannot be used for any other products than those which are set out therein, the second subparagraph of point 5 provides that the first subparagraph ‘does not apply to the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product’. 34. The list of products referred to by the latter provision has, by virtue of Article 121(b)(i) of Regulation No 1234/2007 (now, in substance, Article 91, first subparagraph, (a), of Regulation No 1308/2013) been laid down in Annex I to Decision 2010/791. Therefore, only the products set out in that annex fall within the exception laid down in the second subparagraph. 35. In the present case, it must be observed that that list does not contain any reference to soya or tofu. … 38. Thus, it appears that none of the products mentioned by way of example by the referring court appear on that list and that, therefore, none of the designations that that court mentions are covered by the exception laid down in Annex VII, Part III, point 5, second subparagraph, to Regulation No 1308/2013 ….”
“40. It follows from all of the foregoing that the term ‘milk’ and the designations reserved exclusively for milk products cannot be lawfully used to designate a purely plant-based product, unless that product appears on the list in Annex I to Decision 2010/791. The addition of descriptions or explanations indicating the plant origin of the product at issue, such as those at issue in the main proceedings, does not affect such a prohibition (see, to that effect, judgment of16 December 1999 , UDL, C-101/98, EU:C:1999:615, paragraphs 25 to 28). 41. Furthermore, it is clear from a reading of Article 78(2) and Annex VII, Part III, point 6, first subparagraph, to Regulation No 1308/2013 that that prohibition applies equally to marketing and publicity.”
“43. As is clear from recitals 64 and 76 of that regulation, the objectives pursued by the provisions at issue consist, in particular, in improving the economic conditions for the production and marketing as well as the quality of such products. The application of such standards is therefore in the interest of producers, traders and consumers, to protect consumers and to maintain conditions for allowing competition. Those provisions, in so far as they provide that only the products which comply with the requirements they lay down can be designated by the term ‘milk’ and the designations reserved exclusively for milk products even if those designations are expanded upon by explanations or descriptions such as those at issue in the main proceedings, contribute to the attainment of those objectives. 44. In the absence of such limits, those designations would not enable products with the particular characteristics related to the natural composition of animal milk to be identified with certainty, which would be contrary to the protection of consumers because of the likelihood of confusion which would be created. That would also be contrary to the objective of improving the economic conditions for production and marketing and the quality of ‘milk’ and ‘milk products’.”
“The fact that, in marketing or advertising, the possibility to use the term ‘milk’ and the designations reserved exclusively for milk products is available only to products which meet the requirements laid down by Annex VII, Part III, to Regulation No 1308/2013 is a guarantee, in particular, to the producers of those products of undistorted conditions for competition, and to consumers of those products, that the products designated by those designations meet all the same standards of quality, both protecting them against any confusion as to the composition of the products they intend to purchase. The provisions at issue are thus appropriate to achieve those objectives. Furthermore, they do not go beyond what is necessary to achieve them, since, as the Court has already held, the addition of descriptions or explanations to those designations to designate products which do not satisfy those requirements cannot prevent with certainty any likelihood of confusion in the mind of the consumer. Therefore, the provisions at issue, do not breach the principle of proportionality (see, to that effect, judgment of16 December 1999 , UDL, C-101/98, EU:C:1999:615, paragraphs 32 to 34).”
“milk” is one of the designations referred to in points 1, 2 and 3; point 5 means that “milk” cannot be used for any product which is not milk or a milk product; Article 78(2) covers use in marketing, including trade marks; the Trade Mark includes “milk”, and therefore its use is prohibited; and point 6 did not assist Oatly because it was an additional restriction to point 5, but the Trade Mark did not get as far as point 6 since it contravened point 5. She considered that this interpretation of the 2013 Regulation was supported by VSW v TofuTown. This ground of invalidity did not apply to the goods in Class 25 because they were outside the scope of the 2013 Regulation. As for section 3(3)(b), she held that the Trade Mark was not deceptive in relation to the goods in Classes 29, 30 and 32 because the average consumer would view the Trade Mark “as an ironic way of saying that [Oatly’s] goods have moved on from conventional milk and are for consumers … who no longer consume dairy milk”
“when the designations are clearly used to describe a characteristic quality of the product”