PROTECTION OF WINE NAMES BY TRADEMARK LAW 113 Therefore, a trademark shall be refused registration when the consumer confronted by the sign could establish a sufficiently close connection between that sign and the registered GI. This connection could be the result of imitation or evocation. To determine the existence of an evocation of protected indication of origin, the decisive criterion of evocation is “whether, when the consumer is confronted with a disputed designation, the image triggered directly in his mind is that of the product whose geographical indication is protected, a matter which it falls to the national court to assess, taking into account, as the case may be, the partial incorporation of a protected geographical indication in the disputed designation, any phonetic and/or visual similarity, or any conceptual proximity, between the designation and the indication”26. The consumer of reference is the average European consumer, not only the consumer of the Member State where the product is produced27, who is reasonably well informed and reasonably observant and circumspect. The context surrounding the disputed element is not taken into account. Thus, the complementary indication of the true origin of the product concerned is irrelevant. In that respect, the evocation of the Calvados PGI, registered for cider and perry originating in France, has been found evoked by the Verlados28 sign for cider; and the Gorgonzola DO, registered for Italian cheese, regarding the Cambozola sign for German cheese29. This objective and absolute protection of DO and GI supports only one temporal exception linked to the anteriority of the trademark registration over that of DO or GI. Indeed, article 102(2) of Regulation No 1308/2013 authorises the coexistence of a PDO or GI with a trademark consisting of or containing such designation for products not complying with the product specification concerned, provided that such a trademark was registered or established by use in good faith, and if that possibility is provided for by the law concerned, in the territory of the Union either before the date of protection of the DO or GI in the country of origin or before 1 January 1996. A similar provision has been introduced in article 8(6) EUTMR. This exception is restrictive, and the fact that the applicant is already the owner of national or European trademarks registered prior to the PDO is irrelevant and does not allow avoidance of the application of article 7(1)(j), irrespective of the reputation of the earlier trademarks. Thus, in the Tempos Vega Sicilia case, the applicant claimed the existence of a link between its application and a trademarks family for Vega Sicilia in class 33, before the Sicilia PDO. The 26 ECJ of 7 June 2018, Scotch Whisky Association – Michael Klotz C-44/17, §§ 50-56. 27 ECJ of 21 January 2016 Viiniverla “Verlados”C-75/15. 28 See fn. 27. 29 ECJ of 4 March 1999, Consorcio per la tutela del formaggio Gorgonzola C-87/97.
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