sacha.tuillier@dreyfus.fr

The Court of Justice of the European Union (CJEU)‘s decision in Case C-575/23, concerning the Orchestre National de Belgique (ONB) and the Belgian State, has far-reaching consequences for the right to remuneration and protection of artists’ neighboring rights under European Union law. The ruling challenges national mechanisms that force artists to assign their neighboring rights to their employers without their prior consent, highlighting a potential conflict with EU regulations.

This article will explore the legal principles set out in this landmark decision, assess its impact on European intellectual property law, and discuss its ramifications on national systems that involve assigning rights without consent, particularly in the context of employment contracts and collective works.

Overview of the CJEU’s ruling in case C-575/23

In the case at hand, the CJEU ruled that national regulations mandating the automatic assignment of neighboring rights by artists-interpreters or performers under administrative status, particularly within public institutions such as the Orchestre National de Belgique, are contrary to EU law. The decision explicitly states that such assignment mechanisms, without prior consent from the artists, violate the principles of fair remuneration and the right of authors to control the exploitation of their creations.

The CJEU referred to multiple provisions of EU directives, particularly Directive 2019/790, which emphasizes that the consent of artists is a necessary precondition for the transfer of rights, specifically addressing the issue of fair remuneration for the exploitation of these rights.

Legal context: The Union’s regulations and the assignment of rights

The CJEU based its decision on key provisions of several EU directives regulating copyright and neighboring rights, including Directive 2001/29/EC (on copyright in the information society) and Directive 2006/115/EC (on rental and lending rights). These directives stress that:

• Artists have exclusive rights over their performances and neighboring rights, including the right to control how their performances are used.
• Any assignment of these rights requires their prior consent and must adhere to appropriate remuneration principles.

The CJEU emphasized that an assignment without consent is incompatible with the European Union’s protection standards, which are designed to guarantee fair treatment and compensation for artists.

Analysis of the ruling’s impact on national systems

4.1. The applicability of consent in assignment of rights

One of the central points of the CJEU‘s decision is the requirement for consent. It ruled that automatic assignment of rights, especially those of artists-interpreters, is not valid without prior consent. This principle is rooted in the protection of artistic freedom and the right to fair remuneration for the exploitation of their work.

In practical terms, this ruling makes it imperative for national laws to respect the artists’ right to negotiate and consent to the transfer of their rights, ensuring that they are remunerated appropriately for the use of their works. The directive 2019/790 reinforces the necessity of consent for the assignment of rights in employment settings and in the context of performing arts.

Key quote from the judgment:

“In the light of all the foregoing considerations, the answer to the questions raised is that Article 2(b) and Article 3(2)(a) of Directive 2001/29, and Article 3(1)(b), Article 7(1), Article 8(1) and Article 9(1)(a) of Directive 2006/115 must be interpreted as precluding national legislation which provides for the assignment, by means of a regulatory act, for the purpose of exploitation by the employer, of the related rights of performers engaged under an administrative law statute, in respect of the performances carried out in the context of their service to that employer, without the prior consent of those performers.”

4.2. Consequences on employment contracts and artist rights

The ruling carries significant implications for employment contracts in the creative industries, particularly in public institutions or non-profit organizations such as orchestras, theaters, and other performance arts entities. By invalidating automatic assignment provisions in employment contracts, the CJEU upholds the contractual freedom of artists, ensuring that their neighboring rights are protected under EU law.

This decision could lead to revisions in employment contracts, with employers now required to engage in explicit negotiations and ensure that artists’ rights are not only recognized but also fairly compensated.

4.3. Implications for future legislation

This ruling serves as a catalyst for potential changes in EU and national legislation. It challenges existing legal mechanisms that permitted forced assignment of rights, and it might prompt revisions in areas such as labor law and intellectual property law. Furthermore, the CJEU ruling brings clarity to the implementation of fair remuneration, which is a critical component of Directive 2019/790.

Additionally, this ruling could influence the classification of collective works and how authors’ rights are addressed in creative industries. The shift towards artist-centric regulations could mean greater control for performers and creators over the exploitation of their intellectual property.

Conclusion: A turning point for artists’ protection in the EU

The CJEU’s decision in Case C-575/23 marks a significant milestone in the protection of artists’ rights within the European Union. By invalidating the practice of automatic assignment of neighboring rights without prior consent, the Court reaffirms the EU’s commitment to ensuring that artists and performers are fairly remunerated and have control over their work. This ruling is likely to have far-reaching consequences for employment contracts, collective works, and the overall protection of intellectual property in the EU.

FAQ

The beverage market is evolving rapidly, marked by a significant rise in non-alcoholic alternatives such as alcohol-free beers, often marketed as substitutes for traditional alcoholic drinks like gin or vodka. This shift raises important trademark law questions : can a trademark registered for an alcoholic beverage prevent the registration of a similar mark covering a non-alcoholic product ? More broadly, is there a genuine risk of confusion between these product categories ?

The answer is yes, as recently confirmed by the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) in the landmark KINGSMAN case dated January 24, 2025. This ruling highlights the criteria that authorities consider when assessing the risk of confusion, moving beyond the mere alcoholic content of the product.

How case law, and in particular the EUIPO, analyzes the similarity between different products in trademark law

2.1 Product classification

Alcoholic beverages (such as gin, wine, or champagne) are generally classified under Class 33 of the Nice Classification, whereas non-alcoholic drinks (including alcohol-free beer) fall under Class 32. Traditionally, these distinct classes helped to limit confusion risks, as the products were perceived as fundamentally different.

2.2 A holistic assessment beyond Classes

However, market realities call for a broader analysis. The EUIPO evaluates product similarity by considering not only their nature but also their usage, distribution channels, points of sale, and how the average consumer perceives them.

Thus, the mere presence or absence of alcohol does not automatically eliminate the risk of confusion if the products are offered in similar or even identical contexts and target the same consumer base.

The KINGSMAN decision : A pivotal turning point

3.1 Case overview

In the KINGSMAN case (R 1426/2024-5), the applicant sought to register a trademark for non-alcoholic beers under Class 32, while an identical earlier mark existed for alcoholic beverages in Class 33 such as whisky, vodka, or gin.

3.2 Analysis of confusion risk

The EUIPO’s Fifth Board of Appeal confirmed that a likelihood of confusion exists between alcoholic (such as gin) and non-alcoholic beers. Several factors underpin this conclusion :

• These products often target the same consumer in similar social settings (bars, restaurants, supermarkets).
• They circulate through overlapping distribution channels and points of sale.
• Consumers primarily perceive these products as “beverages,” regardless of alcohol content, which can lead to confusion about their commercial origin.

3.3 Practical implications

This ruling requires heightened vigilance for trademarks in this sector :

• A trademark for a non-alcoholic beverage may be challenged based on the existence of a similar mark for an alcoholic drink, and vice versa.
• De-alcoholized beverages (such as dealcoholized wines) are also considered close to alcoholic beverages in this analysis.

Understanding consumer perception and the commercial context

4.1 Points of sale and consumption patterns

Alcoholic and non-alcoholic drinks are frequently sold side by side in the same venues (supermarkets, bars, restaurants) and via identical sales channels. This proximity increases the likelihood that consumers may confuse similar trademarks.

4.2 The role of alcohol content in perception

Even though consumers recognize the difference in alcohol content, trademark law focuses on the overall impression and commercial context, which can diminish this distinction. The average consumer does not necessarily possess detailed expertise and often relies on the visual and phonetic similarities of trademarks, as well as the purchasing environment.

Practical advice to effectively protect your trademark

5.1 Filing strategy and choice of Classes

To secure trademark protection in the beverage sector, it is advisable to file in both Classes 32 and 33. This dual coverage is crucial to protect both alcoholic and non-alcoholic beverages, especially in a market where product lines often overlap or evolve.

5.2 Monitoring and enforcement actions

Active monitoring is essential to detect promptly any filings or use of similar trademarks in related classes. This allows for swift and effective enforcement in the event of confusion risk or infringement.

Conclusion : Anticipating and managing confusion risks

The beverage market’s evolution, driven by the growing popularity of non-alcoholic alternatives, profoundly impacts the criteria for assessing confusion risks under trademark law. The KINGSMAN ruling marks a turning point by recognizing a real risk of confusion between trademarks covering alcoholic and non-alcoholic beverages.

For trademark owners and applicants, adopting a strategic, proactive, and comprehensive approach is key to effectively safeguarding brand image and rights.

FAQ

Labeling of food products, and wines in particular, has always been a major concern for European regulatory authorities. With the aim of increasing transparency and better informing consumers, the European Union (EU) has adopted new rules that will significantly modify wine labeling. Regulation (EU) 2021/2117, applicable from December 8, 2023, will oblige wine producers to provide additional information on their labels, marking an important step in the evolution of food labeling standards.

Legal context

These new obligations fall within the framework of Regulation 1308/2013 of December 17, 2013, also known as the “CMO Regulation” (Common Market Organization), which already defines several requirements for wine product labeling. These requirements include the denomination of the product category, specific mentions concerning the degree of alcohol, the Protected Designation of Origin (PDO) or Protected Geographical Indication (PGI) where applicable, as well as information on the bottler and importer.

Regulation (EU) No. 1169/2011, known as the “INCO Regulation”, which lays down the general principles of food information for consumers, will also apply to these new labeling rules, unless otherwise stipulated. The INCO Regulation has introduced a broad definition of what constitutes an “ingredient”, including any substance used in the manufacture of a foodstuff and present in the finished product.

New Labeling Obligations

The major changes introduced by Regulation (EU) 2021/2117 concern the obligation for wine producers to include a list of ingredients and a nutritional declaration on the label. This list may be limited to an indication of the product’s energy value, but a complete version of the list of ingredients must be available electronically. Allergenic or intolerance-causing substances must, however, be clearly indicated on the product’s physical label.This information can be presented directly on the bottle label, legibly and indelibly, or dematerialized, for example via a QR code. This flexibility of presentation reflects the EU’s desire to adapt to technological developments, while ensuring that consumers are fully informed.

Implications for Producers and Consumers

The new labelling rules are designed to enhance transparency and enable consumers to make informed choices. They underline the importance for wine producers of complying with these requirements to ensure the smooth circulation of their products within the EU internal market.

For producers, this means updating their labeling practices and potentially incurring additional costs to comply with the new rules. However, the transitional period provided for in the regulation, authorizing the disposal of stocks produced or imported before December 8, 2023, offers time to adapt their processes.

Legal implications

These changes raise several important legal issues:

Compliance and Sanctions: Producers must ensure their compliance with the new rules to avoid sanctions. Effective implementation of these requirements requires a review of labeling practices and technological adaptation for those opting for dematerialized solutions.

• Transparency and Consumer Protection: The main aim of these rules is to increase transparency and better inform consumers about the products they consume. This could have positive repercussions in terms of informed choice and public health.

• Impact on the international market: For non-EU producers, these requirements represent an additional challenge to access the European market. They need to align with these standards to maintain and expand their presence in this market.

• Practical and technical issues: The implementation of the dematerialized option raises practical issues, notably concerning the accessibility and reliability of online nutritional information and ingredient lists.

Conclusion

The adoption of Regulation (EU) 2021/2117 is a giant step towards a more transparent and regulated wine industry responding to growing consumer concerns about their health and the origin of the products they consume. However, their successful implementation will depend on the ability of producers to adapt to these requirements, and the willingness of the authorities to ensure effective and uniform application of the law.

Dreyfus et Associés, in partnership with a network of lawyers specialized in Intellectual Property, is positioned as a pillar for wine producers. We offer tailor-made assistance to navigate this new era of labeling, ensuring compliance while preserving the essence of each brand.