Wine Law

112 WINE LAW Therefore, a trademark that contains or consists of such indications has to be filed by an applicant able to guarantee the harvest and vinification at that place22; otherwise, the trademark will be of a nature deceitful to the public. The link between the product, the land and the trademark is an indissoluble one. Consequently, the assignment of the sign will also be subject to these requirements and will not be detachable from the exploitation. The trademark constitutes an ancillary part of the exploitation. Furthermore, this mandatory connection with the land prohibits the mere inclusion of a PDO or a GI in a trademark not limited to products from the geographical area in question. Therefore, “the ground for refusal laid down in Article 7(1)(j) of Regulation No 40/94 applies without it being necessary to consider whether the marks for which registration are sought are of such a nature so as to deceive the public or not, or whether they lead to a likelihood of confusion regarding the origin of the product”23. As a result, the GCEU has upheld the refusal to register trademarks, in which a PDO or GI is entirely reproduced in a complex trademark or entirely reproduced and clearly identifiable in the sign. With regard to the former, Tempos Vega Sicilia, in consideration of the Italian DO Sicilia, protected and registered in the European Union to designate wines from the island region of Sicily24. Concerning the latter, Lembergland, in consideration of the GI Lemberg, protected in the European Union for South African wines under a bilateral convention between the European Union and the Republic of South Africa25. However, as regards comparable goods (which has to be understood restrictively and referring to all types of wines not complying with the product specification of the protected name), the protection is wider than the mere reproduction. Furthermore, it applies, according to articles 102 and 103(2) of Regulation No 1308/2013, against “(a) any direct or indirect commercial use of that protected name […], (b) any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated, transcripted or transliterated or accompanied by an expression such as "style", "type", "method", "as produced in", "imitation", "flavour", "like" or similar; (c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the wine product concerned, as well as the packing of the product in a container liable to convey a false impression as to its origin; (d) any other practice liable to mislead the consumer as to the true origin of the product”. 22 See French Supreme Court no. 05-21.798, 30 May 2007, Château des Barrigards; no. 11-28.654 and no. 12-10.185, 12 February 2013, Maison Ginestet. 23 GCEU of 9 February 2017, Bodegas Vega Sicilia T-696/15, § 20; GCEU of 11 May 2010, Abadía Retuerta “Cuvée Palomar” T-237/08, §§ 119-120. 24 See fn. 23. 25 GCEU of 14 July 2015, Genossenschaftskellerei Rosswag T-55/14.

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