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By Peter Leung
Consumers aren’t likely to mistake Port Charlotte scotch for port wine, the European Union’s top court said Sept. 14 in letting the whiskey maker register a trademark over the objections of a group of Portuguese port producers ( European Union Intellectual Property Office v. Instituto dos Vinhos do Douro e do Porto , E.C.J., Case C-56/16 P, 9/14/17 ).
The Court of Justice for the European Union said that the Port Charlotte trademark doesn’t use or evoke port wine, which is protected under EU regulations for geographical indications, a trademark-like right that covers terms alluding to a product’s location of origin and the qualities associated with that location.
Makers of many European products, such as port wine and champagne, rely on the protections offered by geographic indications, and the CJEU’s decision offers guidance on those rights under EU law.
The average consumer with at least a basic understanding of English or a Romance language would interpret Port Charlotte as a reference to a harbor—not to the fortified wine from Portugal, the court said. That means there is no likelihood of confusion as to the origin of the goods, nor is the scotch attempting to unfairly ride on the wine’s reputation, it said.
The CJEU also held that the law on geographical indications for wine is governed solely by EU law, which means that national laws cannot supplement or alter the level of protection. Allowing countries to have their own system or less strict requirements for using a protected term would undermine the purpose of the EU law, which is to assure the quality of the goods carrying the geographical indication, the court said.
The Port and Douro Wines Institute, the producers’ trade group, tried to argue that Portuguese law should also apply in order to provide more restrictions on the use of the word port.
The CJEU’s decision differs from that of the advocate general, an advisor that provides opinions on how the court should rule on specific cases. The advocate general’s opinion agreed that only EU law applies but found the Port Charlotte name confusingly similar to port wine.
Advocate general opinions are influential with the court, with some studies showing that the two arrive at the same conclusion about 80 percent of the time.
Judge Alexandra Prechal drafted the opinion, which Judges Marko Ilesic, Allan Rosas, Camelia Toader and Egidijus Jarasiunas joined.
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