In Poland, particularly in the city of Poznań, the tradition of baking Saint Martin’s croissants is an important part of the Saint Martin’s Day celebrations. The croissants, filled with a distinctive mixture of white poppy seeds, honey, dried fruit and nuts, are made according to a traditional recipe and enjoy legal protection as a geographical indication. How does this protection operate in practice? Can popular pastries, which are uncertified, yet use the term “Martin’s” instead of “Saint Martin’s” in their names, be considered a violation?

What are geographical indications?

Protected Geographical Indications (PGI) are designations granted to products that have obtained legal protection and possess a specific quality, reputation, or other characteristic features linked to their place of origin. Geographical indications are protected by regulations aimed at preventing third parties from using of geographical names in ways that could mislead consumers or diminish the value of the protected name.

A geographical indication is intended to designate an agricultural product or foodstuff:

– originating from a specific place, region, or country;

– whose specific quality, reputation, or other characteristic feature is mainly due to that geographical origin, or

– for which least one stage of production takes place in that specific geographical area.

Legal protection of geographical indications

Registered geographical indications are protected against:

– direct or indirect use for commercial purposes of a geographical indication in relation to the products not covered by registration, if they are comparable to the registered products, or if the use of such an indication is misleading or weakens the reputation of the protected name;

– inappropriate use, imitation, or the so-called evocation.

Saint Martin’s croissant, as a geographical indication referring to a pastry traditionally produced in the city of Poznań and its surroundings, was registered as a geographical indication in October 2008. Therefore, only those traditional croissants with white poppy seeds filling, prepared especially for the national holiday of November 11, will be allowed to be branded with the following designation:

Thus, consumers are clearly informed whether the product they are buying is indeed traditional, originating from a specific region and offering a specific quality.

What is „evocation” of a geographical indication?

According to the judgment of the Court of Justice of the European Union in case No. C 783/19, “evocation” of a geographical indication occurs when the use of a name creates the impression of a direct and clear link to a protected geographical indication. When assessing whether an evocation has occurred, the following aspects are taken into account:

– partial inclusion of the protected name,

– phonetic and visual similarity between the names,

– conceptual proximity between the names, as well as similarity between the designated products.

As an example of how phonetic and cultural similarity can lead to the evocation of a geographical indication, one can cite the judgment of the Court of Justice of the European Union in Case No. C-614/17. This judgment concerned the protection of agricultural product names, specifically the names “Rocinante” and “Queso Manchego.” The case concerned the question whether the name “Rocinante” (the name of an olive oil) was likely to be confusingly similar to the registered name “Queso Manchego” (a cheese originating from the La Mancha region of Spain).

The Court ruled that if a product name might mislead consumers as to its origin or quality, it could not be used in the way that endangers the protection of geographical indications such as “Queso Manchego.” Therefore, “Rocinante” could not be used if it caused confusion as to the origin of the product, which might be confused with the cheeses protected by the name “Queso Manchego.”

As it can be seen, it is not necessary to repeat the entire geographical indication or its part in order to recognize that we are dealing with an evocation and infringement of rights.

Martin’s croissant and Saint Martin’s croissant – are we dealing with “evocation”?

The question is whether the use of the term “Martin’s croissant” in the name of a baked pastry that is not certified, constitutes a violation of the protected geographical indication “Saint Martin’s croissant.”

It is essential to note that the difference between the name “Martin’s croissant” and “Saint Martin’s croissant” is minimal, as it consists only in the absence of the word part “saint”, which is an integral part of the traditional name. For the average consumer, who is sufficiently attentive and reasonable, such alteration may be insignificant. As a result, the name “Martin’s croissant” alone may evoke associations with “Saint Martin’s croissant” and subsequently it is doubtful whether the provisions relating to protection of geographical indications have been duly fulfilled.

One argument in favor of “Martin’s croissant” is such that the term “Martin’s” may refer to the person of St. Martin himself, and not necessarily to the city of Poznań. However, if the product is sold with reference to the November tradition of baking these pastries in Poznań, it may be considered an evocation of the protected geographical indication and thus an act of unfair competition.

In practice, we are dealing with many attempts to suggest the consumers that a given product has high quality because it is a geographical indication. In Poland, only a few products have obtained such protection. Apart from Staint Martin’s croissant, these include: “oscypek” cheese, “Grójec” apple, “Prądnik” bread, “Szydłowska” plum, and “Kalisz” wafers. For the entities operating on the market, making reference to geographical indications and using some parts of their names in their products is the more attractive, the more consumers are becoming interested in a given product originating from a specific region.

However, the use of such names as “Martin’s croissant,” “uscypek,” or “apples from around Grójec” is generally not permitted and constitutes infringement of geographical indications. Thus, the holder of right to a registered geographical indication, as well as anyone listed in the register as authorized users, shall be entitled to make claims against the infringer.

Summary – the risk of infringement of the right to a geographical indication

In the context of the above mentioned case concerning the name “Martin’s croissant,” the answer to the question whether it infringes the right to the designation “Saint Martin’s croissant” is not so obvious. Although one element of the name has been changed, from consumer’s perspective it may evoke associations with the traditionally baked pastry in Poznań, which in turn may constitute an evocation and infringement of the protected geographical indication.

Geographical indications are important tools for protecting the tradition, quality, and interests of producers. Therefore, it is advisable to make sure that one is not using a registered name in the way that can be misleading to consumers, as the unauthorized use of a geographical indication may result in legal liability.