124 WINE LAW II.2. AVAILABILITY REGARDING RIGHTS RELATED TO PERSONALITY AND CREATION Article 60(2) EUTMR introduces additional general grounds for refusal or invalidity of a trademark, “where the use of such trademark may be prohibited pursuant to another earlier right under the Union legislation or national law governing its protection” without further specification, other than a list of examples. The rights to a name, personal portrayal, copyright and industrial property belong to this category, are therefore rights of personality or linked to a creation, which are likely to be exploited commercially. Wine names often include a patronymic name, which most often corresponds to the name of the current or former owner of the winery. Accordingly, Carmen Sancho de Pedro’s claimed her right to the name, specifically the title of nobility Marqués de Ballestar” (which she had held since 16 December 1971), against the sign for alcoholic beverages (except beers) and wines in class 33 and services in classes 35 and 39. Given that, in the Spanish body of laws, titles of nobility enjoy the protection of the right to honour, personal and family privacy and own image, the sign has been declared invalid54. III. A LEGITIMATE SIGN Finally, since trademark rights are an exception to the freedom of trade and competition, the granting of trademark rights cannot, therefore, even if inadvertently, confer a monopoly on an applicant in bad faith. The EUTMR has established good faith as an autonomous criterion, which must govern the application of trademark law. Thus, in order to be validly and permanently protected, good faith must prevail both at the stage of its filing (III.1) and its opposition to third parties (III.2). 54 EUIPO of 3 December 2009, Marqués de Ballestar, R 1288/2008-1.
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