PROTECTION OF WINE NAMES BY TRADEMARK LAW 103 restrictive. The previous requirement2 for graphical representation was dropped with this new Regulation, which will help the registration of non-traditional trademarks and create new kinds of trademarks. As with any commercial trademark, wine trademarks may consist of a fanciful name, a figurative element or a three-dimensional sign, but traditionally, they are geographical trademarks that incorporate the denomination of origin, i.e. of the name of the vineyard or of a tenant. Therefore, in the wine sector, a distinction has to be made between these two kinds of trademarks, which are of a different nature: the former creates a new and independent right and identifies a producer, while the latter consolidates a pre-existing right by its registration as a trademark and is not detachable for the production it guarantees. As filed as a trademark, they are both subject to the EUTMR regarding general validity requirements, but the nature of traditional wine trademarks leads to specificities in their application. I.2. Distinctiveness: A Core Function of Trademarks According to the requirements of article 4 EUTMR, the conformity of the sign is not sufficient to have a valid trademark. Indeed, article 7 provides a list of absolute grounds for refusal of a EUTM, which are related mainly to the lack of distinctiveness [art. 7(1)(b) and (e)], descriptiveness and ordinariness [art. 7(1)(c) and (d)], deceptiveness (point g) and the protection of official signs of quality and origin [art. 7(1)(j), (l) and (k)]. Articles 4 and 7 EUTMR rule that a trademark has to be capable of distinguishing the goods or services of one undertaking from those of other undertakings, i.e. to be distinctive. Distinctiveness is an essential condition of the validity of trademarks assessed, at the time of filing, by reference to the designated products and services [art. 7(1)(b)]. However, a sign could become distinctive as a consequence of the use which has been made of it, but it can also lose its distinctiveness if, in consequence of acts of inactivity by the proprietor, the trademark has become the common name in the trade for a product or a service in respect of which it is registered (art. 58 EUTMR). Distinctiveness implies that trademarks will not be registered if they consist exclusively of: descriptive signs or indications [art. 7(1)(c)]; signs or indications which have become customary in the current language or the bona fide and established practices of the trade; [art. 7(1)(d)]; or 2 Article 4 of Regulation (EU) No 207/2009 of 26 February 2009.
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