Wine Law

PROTECTION OF WINE NAMES BY TRADEMARK LAW 105 of production and so on. In all cases, registration of a sign shall be refused when it has a descriptive character in the language of a member-state, even though it is likely to be registered in another Member State. The sign has to present a sufficiently direct and concrete link with the goods and services at issue so as to enable the public concerned to immediately perceive a description of such goods and services or their characteristic5. Its descriptivity assessment should be made by reference, on the one hand, to the perception of the public and, on the other, to the designated products and services. However, if the sign has to consist exclusively of symbols or indications that may designate characteristics of the goods or services concerned, it is irrelevant whether there are other, more usual, signs or indications designating the same characteristics of those goods or services6. Furthermore, if a term has several potential meanings, it shall be refused registration since, at least one of its meanings is descriptive of a characteristic of the designated products and services. Terms that are only suggestive or allusive regarding specific characteristics of the goods or services are not considered descriptive. The exclusivity requirement of descriptiveness limits the extent of article 7(1)(c). Therefore, it has been ruled, as regards laudatory connotation, that the relevant public cannot perceive a trademark both as a promotional formula and as an indication of the commercial origin of the goods or services. It follows that, in so far as the public perceives the trademark as an indication of that origin, the fact that the trademark is, at the same time, understood (perhaps even primarily understood) as a promotional formula it has no bearing on its distinctive character. Thus, it is unlikely that a sign referring to the characteristic of a product or service that, in turn, can be found in abundance in a single place with a high degree of value (i.e. La Milla de Oro) will be considered as descriptive. Indeed, the Spanish expression “la milla de oro” (“the golden mile”) designates, in the first place, a geographical zone that varies depending on the name of the geographical place which accompanies it and, secondly, a specific level of quality of the goods and services that varies depending on the name of the geographical place with which that sign is associated 7. In the presence of a complex trademark, for instance, one composed of several verbal or figurative elements, the assessment relates to each element of the sign, but also the sign as a whole. The sole fact that each element, taken separately, is descriptive in nature does not preclude that their combination may be devoid of such character. 5 GCEU of 14 July 2017, Classic fine foods T-194/16 §2 0. 6 ECJ Koninklijke KPN Nederland C-363/99 § 57. 7 ECJ of 6 July 2017, la Milla de Oro C139/16.

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