122 WINE LAW confusion, and, thus, with respect to similar products or services. The GIs’ inclusion as relative grounds has been made by EU Regulation 2015/2424; until then, they were covered by general grounds related to other signs in the course of trade, which are still protected by article 8(4). Furthermore, unlike article 7(1)(j) concerning absolute grounds, article 8(6) does not refer to international agreements relevant to the Union or the Member State concerned. However, the reference to the Union legislation and national law should include them. Article 8(6) is intended to apply to DOs and GIs that may prohibit the use of a subsequent trademark. According to the EU Regulation No 1308/2013, the acts of use concerned are of direct or indirect commercial use, misuse, imitation or evocation, and other false or misleading indication and practice, as for absolute grounds for refusal or nullity (see above I.4.1.). These acts do not require the assessment of a likelihood of confusion between the signs. However, in the famous Port Charlotte case51, an application for a declaration of invalidity based on articles 8(4), 53(1)(c) and 53(2)(d) of Regulation No 207/2009 [replaced respectively by art. 8(4), 60(1)(c) and 60(2)(d) EUTMR] was brought before the ECJ against the trademark Port Charlotte, which had been restricted to whisky, because of its use and its reference to the Porto or Port PDOs or Port wines. Instead of referring to the specific provision to AOs, the applicant for a declaration of invalidity relied on the general provisions protecting unregistered trademarks and signs in the course of trade with a scope other than local, in order to claim the application of Portuguese national law and, thus, circumvent the exhaustive nature of Union law on the subject. The Court recalls 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, in the first place, of direct or indirect commercial use and, secondly, of misuse, imitation or evocation by the Port Charlotte trademark, 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’, 51 ECJ of 14 September 2017, Port Charlotte, C-56/16.
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