Wine Law

25 exhaustive nature of Union law on the subject. The Court recalled that the application of the Union legislation is uniform and exhaustive, exclusive of any application of national law. The assessment of the similarity of the goods was not at issue. To determine whether the DO is subject firstly of direct or indirect commercial use, and secondly of misuse, imitation or evocation by the trademark Port Charlotte, the Court focused its analysis on the differences of concept between the signs. Indeed, it considered that: “(…) the sign ‘PORT CHARLOTTE’ (…) will be perceived by the relevant public, as a logical and conceptual unit referring to a harbour, (…) with which a first name, which constitutes the most important and most distinctive element in the contested mark, is associated. (…) the relevant public will not perceive in that sign, any geographical reference to the port wine covered by the designation of origin in question ” (§100). As regards the potential evocation, the Court stated that even if there could be ‘evocation’ even in the absence of any likelihood of confusion between the products concerned, “ even though the term ‘port’ forms an integral part of the contested mark, the average consumer, even if he is of Portuguese origin or speaks Portuguese, in reaction to a whisky bearing that mark, will not associate it with a port wine covered by the designation of origin in question ”. In so doing, the Court carried out an analysis which was akin to that of the likelihood of confusion, even though it should have disregarded it, as the Advocate General had recommended, and: “(…) to focus on whether the new mark created ‘in the mind of the public an association of ideas regarding the origin of the products’, particularly since the products concerned are similar in appearance, both being bottled as alcoholic beverages, and in the light of the (partial) aural similarity between the well- known PDO and the mark in respect of which a declaration of invalidity was sought ” 54 . This analysis of evocation runs counter to the desire hitherto expressed, in particular in EU regulations, for greater protection of DOs and GIs to the benefit of the protection of consumers. 54 Opinion of the General Advocate Campos Sánchez-Bordona, 18 May 2017, C-56/16 §98.