PROTECTION OF WINE NAMES BY TRADEMARK LAW 107 unlikely to distract consumers’ attention from the descriptive meaning of the verbal element10. I.2.3. THREE-DIMENSIONAL TRADEMARKS AND DISTINCTIVENESS Three-dimensional trademarks are usually the product’s container, packaging or appearance, or the product itself. Furthermore, it is possible to combine them with other elements, such as verbal or figurative elements. While the criteria for assessing the distinctive character of 3D trademarks are no different from those applicable to other categories of trademarks, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same11, since the average consumers are not in the habit of making assumptions about the origin of products based on their shape or the shape of their packaging in the absence of any graphic or word element. However, “the way in which the relevant public concerned perceives trademarks is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (Lloyd Schuhfabrik Meyer, paragraph 26). In the present case, it is common ground that the operators on the market of the goods concerned, which is highly competitive, are all faced with the technical necessity of packaging for the marketing of those goods and subject to the need for them to be labelled. In such a context, certain operators have for several years sought in the shape of the packaging the means to differentiate their goods from those of the competition and to attract the public’s attention. It thus appears that the average consumer is quite capable of perceiving the shape of the packaging of the goods concerned as an indication of their commercial origin, in so far as that shape presents characteristics which are sufficient to hold his attention.”12. Products that do not have an inherent shape require packaging aimed at their commercialisation, which must be assimilated to the product’s shape in order to examine a trademark application. In order to assess the distinctiveness of a three-dimensional shape, it must be checked whether the sign significantly departs from the norm or customs of the sector and thereby fulfils its essential function of indicating origin13. 10 GCEU of 8 May 2019, Team Beverage AG/EUIPO, T55/18; see also GCEU of 19 December 2019, T-54/19, biancofino. 11 ECJ of 29 April 2004, C-456/01 & C-457/01 (Henkel), §§ 38-39; see also ECJ of 7 October 2004, C-136/02 P (Mag Instrument), §§ 30-32. 12 GCEU of 3 December 2003, Nestlé Waters T-305/02. 13 Henkel, § 39, see fn. 11.
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