Evocation of a geographical indication

Evocation is one of the forms of infringement of a geographical indication prohibited by European Union law, alongside direct or indirect commercial use, misuse and imitation. Regulation (EU) 2024/1143 prohibits any evocation of a registered name, even if the true origin of the product is indicated or the name is translated or accompanied by expressions such as “style”, “type”, “method” or “as produced in”. The same prohibition appears in the French Intellectual Property Code for geographical indications for craft and industrial products.

The concept and its place among the forms of infringement

Evocation is distinct from misuse, which reproduces the protected name, and from imitation, which copies it approximately. It covers the situation where the term or sign used, without reproducing the name, triggers in the consumer’s mind the image of the product covered by the PDO or PGI. The Court of Justice of the European Union has made clear that protection against evocation is autonomous and requires neither a likelihood of confusion, nor a competitive relationship between the products, nor an intention to deceive, and that it applies even where the real origin is clearly indicated on the labelling.

The criteria laid down by the Court of Justice

The decisive test is whether the average European consumer, reasonably well informed and reasonably observant and circumspect, when confronted with the contested name or sign, is led to have directly in mind, as a reference image, the protected product. The court takes into account the phonetic and visual similarity between the terms, the partial incorporation of the protected name and, failing those, the conceptual proximity between terms in different languages. The Court accepts that evocation may result from figurative elements, such as landscapes or symbols typical of the area, affixed to comparable products, and that it may arise from a sign designating services, for example a restaurant. A likelihood of confusion is not required, but a vague association of ideas is not enough.

Evidence and sanctions in France

Evocation constitutes infringement within the meaning of Article L. 722-1 of the French Intellectual Property Code, which opens the way to saisie-contrefaçon, provisional measures and proceedings before the Judicial Court, brought by the protection and management body (organisme de défense et de gestion), producers or the INAO. It is also sanctioned as a misleading commercial practice and may found an action for free riding (parasitisme). Evidence rests on a comparison of the terms and packaging, on the labelling and on the commercial presentation, surveys not being necessary.

Key points

Evocation is established as soon as the average European consumer has the protected product directly in mind on seeing the contested name, term or visual, without any need for a likelihood of confusion or a misleading indication of origin. The words “type” or “style” provide no defence. Before any launch, product names, visuals and domain names should be checked against registered names, and producer groups should document the association of ideas created by the contested sign.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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