Those of you attending the annual International Trademark Association conference in Barcelona may be drinking a glass of Cava right now and wondering: what makes sparkling wine different from regular wine, and what is the real the difference between Cava and Champagne (or, as the great Zapp Brannigan pronounces it, “champagen”)? Those of us stuck at home and not allowed to go to Barcelona – and no, we’re not going to stop complaining about that anytime soon – may be wondering the same thing. Wouldn’t it be great if you could get a judge to explain it to you?
It turns out that the question is answered in more detail than you probably want by District of Minnesota Judge Joan Ericksen’s 35-page opinion in Roederer v. J. Garcia Carrion, S.A., 732 F. Supp. 2d 836 (D. Minn. 2010). In that case, the makers of CRISTAL Champagne (so named because it was sent to Tsar Alexander II in crystal bottles) brought a trademark infringement action against the makers of CRISTALINO Cava. The case was initially dismissed on laches grounds (CRISTAL waited to bring suit until about 15 years after CRISTALINO had entered the U.S. market), but the Eighth Circuit reversed and remanded, and the parties subsequently conducted a bench trial on the issue of likelihood of confusion. Judge Ericksen’s detailed findings and conclusions began as follows:
Still wine, or wine without bubbles, is made by a fermentation process that converts grape sugar into alcohol and carbon dioxide. The carbon dioxide in still wine is released by the wine producer after fermentation.
Sparkling wine, or wine with bubbles, is made using a second fermentation process that converts still wine into sparkling wine. According to the traditional method, also known as the “Method Champenoise” or “champagne method,” the second fermentation occurs in the bottle in which the sparkling wine is sold. The carbon dioxide is trapped in the bottle, dissolves into the wine, and escapes as bubbles when the sparkling wine is released from the bottle. According to the alternative “bulk” or “Charmat” method, the second fermentation takes place in a large tank or vat. After the second fermentation is complete, the contents of the tank are pumped into bottles for sale. The traditional method of producing sparkling wine results in higher-quality wine than the Charmat method.
Champagne and cava are both sparkling wines. When used properly, the term “champagne” denotes a sparkling wine made according to the traditional method from grapes grown in the Champagne region of France. A vintage champagne is made from grapes of the same year’s harvest. A non-vintage champagne is made from grapes of different years’ harvests. The term “cava” denotes a sparkling wine made in the Catalonia region of Spain.
Got that? Both Champagne and Cava are sparkling wines, the former made from a blend of Champagne-region grapes and the latter from mostly (95%) Catalonian Macabeu grapes. Both beverages are fermented by a variation on the “Method Champenoise,” also known as the “traditional method,” which is acknowledged as the most desirable fermentation process for sparkling wine (as opposed to, for example, the “Charmat” method, which is how the Italians make Prosecco).
In her likelihood of confusion analysis, Judge Ericken goes on to talk about perhaps the most important difference between Cava and Champagne – and one close to my heart– price point. At the time, CRISTALINO Cava sold for as low as 8 bucks a bottle, while CRISTAL Champagne was commanding between $200 and $280 a “pop” (a difference you can justify in a variety of ways, including history, aspirational cachet, and the length of time the wine is aged on the lees). This price difference means that, although the products are certainly in commercial proximity (i.e., sold at some of the same stores), they are not directly competing.
Perhaps because of the lack of direct competition, actual confusion evidence was hard for the plaintiff to come by. Despite the fact that the products were on the market together for twenty years, pretty much the only evidence of actual confusion that the plaintiff was able to come up with was that one time, a guy in Michigan bought some bottles of CRISTALINO thinking they were CRISTAL; but it turned out this happened only because the letters “INO” were covered up by the price sticker.
So does that mean that CRISTALINO Cava won the case? No. The Court found that there were too many likelihood of confusion factors going the other way, most obviously the similar names, but also similar bottles and trade dress. On top of that, it is industry custom for prestige wine makers to produce lower-priced versions of their product for us unwashed masses, making it more likely that consumers would think that CRISTALINO was the official junior varsity version of CRISTAL. And as to the fact that the products obviously come from different countries, CRISTALINO had somewhat blunted the force of that distinction by advertising itself as “made using the traditional method with yeast from the Champagne region of France.”
The Court found that there was indeed a likelihood of confusion and, on July 27, 2011, issued a permanent injunction ordering the defendant to stop using CRISTALINO in association with the sale of Cava, unless certain conditions are observed, including that the word CRISTALINO be accompanied by the defendant’s house mark (e.g., JAUME SERRA CRISTALINO). The Court also required a disclaimer of any connection with CRISTAL Champagne. Of course, the practical result of this disclaimer requirement is that the words “CRISTAL® Champagne” are now printed on the label of every bottle of CRISTALINO Cava. C’est Law Vie.