116 WINE LAW of a wine in a Member State, which did not define it as a traditional term, may only be permitted if there is no risk that it will mislead the persons to whom it is addressed by creating confusion with the traditional terms listed by EU Regulation. Its translation into a language other than the one in which that term is protected could imitate or evoke the latter, in the cases the translation is likely to cause confusion or to mislead the persons to whom it is addressed. Consumer deception is at the very heart of the concerns of EU legislation and its analysis is the guiding principle. Therefore, the requirement to eliminate deception enforces a compliance of the sign adopted and the qualities of the wine itself. Nevertheless, this protection of traditional terms for wines is not total and seems to be limited to the wine sector. This speciality principle has been expressly recalled by the Paris Court of Appeal36 in a case related to cosmetic products named “Premier Cru” and “Soin Premier Grand Cru”, marketed by the company Caudalie. However, “Premier Cru” and “Grand Cru” are protected as traditional terms for wines in France and the EU. The Paris Court of Appeal confirmed the judgement that dismissed the action for nullity of these trademarks for lack of distinctiveness, descriptiveness, deceptiveness and contrary to Public Order, but also for parasitism and for unlawful evocation of DOs, which may be accompanied by these traditional terms. The Court stated that the protection of these traditional terms is limited to products from the vine and that they are not signs of quality outside their speciality; therefore, they can be validly used as a distinctive sign. It considered that the consumer would not be likely to believe that the product was made of wines classified as “Premier Cru”, despite the use of oenology-related vocabulary by Caudalie when launching its cosmetic products. Nevertheless, this decision was made prior to the implementation of the 2015 EU directive in France. Once a sign is eligible for protection, it must still be available in order to constitute a valid trademark. II. AN AVAILABLE SIGN In so far as the trademark is a right of occupation, the sign for which registration is sought must be available. However, this requirement of availability is neither absolute nor autonomous and is assessed through the existence of a likelihood of confusion. The assessment of the latter makes it possible to 36 Paris Court of Appeal, 29 May 2018, RG 16/14549.
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