132 WINE LAW II. THE NOTION OF UNCONVENTIONAL TRADEMARKS To understand the notion of unconventional trademarks, it is important to begin by examining the definition of trademarks, under current EU laws. According to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trademark (hereinafter EUTMR): “an EU trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: (a) distinguishing the goods or services of one undertaking from those of other undertakings; and (b) being represented on the Register of European Union trade marks (‘the Register’), in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor”2. According to the above definition, there are clearly two main elements that determine whether a sign is, in fact, a trademark, as per the EUTMR: (a) the sign’s distinctive character, i.e. whether it is capable of functioning as an indication of origin for the goods and services (origin function); and (b) the sign’s representation to the Register, which will enable the public (including the rights-holder’s competitors) to clearly and precisely determine the sign which has been afforded protection. One of the most important changes brought forward by the Trademark Reform – enacted under Regulation (EU) 2015/2424 of the European Parliament and the Council amending the Community Trade Mark Regulation 207/2009 (hereinafter Trademark Reform) – was the abolishment of the graphical representation requirement for a sign to fall under the definition of a trademark (art. 4 EUTMR). This means that, further to the Trademark Reform, signs can be represented in any appropriate form using generally available technology, as long as the representation is clear, precise, self-contained, easily 2 Article 4, Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark.
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