UNCONVENTIONAL TRADEMARKS IN THE WINE INDUSTRY 133 accessible, intelligible, durable and objective3. While the purpose of this amendment was to make the trademark entries on the EUTM Register clearer, more accessible and easier to search for, based on a “what you see is what you get” system4, it facilitated, at the same time, the registration of non-traditional, unconventional trademarks, which may not have fallen under the definition of a trademark pursuant to the previous legal regime. The notion of “unconventional trademarks” generally refers to signs that deviate from the norm and from what consumers are used to perceiving as indications of origin. Three-dimensional shapes, position marks, motion trademarks, audio-visual and hologram trademarks, even store layouts and designs are good examples of unconventional trademarks. The practice of registering – or the attempt to register – such types of trademarks has been present in the market long before the Trademark Reform was enacted, with brands filing applications to protect signs which could hardly qualify – in the minds of consumers – as indicators of commercial origin (which is the primary function of a trademark – as it will be illustrated below). Wellknown examples of unconventional trademarks include the Louboutin Red Sole Mark, the Bang & Olufsen pencil-shaped loudspeaker, the Bottega Veneta “Intrecciato” pattern, the Lego toy brick, the London Taxi Cab, the Kit-Kat four-fingered shape mark, the Tripp-Trapp children’s chair and, from the wine industry, the shape of the gold and pink bottles of Bottega’s sparkling wines, which we will analyse in more detail under Section IV.2.3 below. The waiver of the graphic representation requirement, under the Trademark Reform, only facilitated the businesses’ efforts to register non-traditional trademarks, which, as we will examine, albeit a strong marketing and branding tool, involves considerable risks when it comes to the core principles underpinning trademark law: protection against consumer confusion and unfair competition. Thus, what is the value of unconventional trademarks, and why are they so essential in a business’s brand strategy? 3 Source: https://euipo.europa.eu/ohimportal/en/elimination-of-graphical-representation-requirement, last accessed on 19 November 2020. 4 Ibidem.
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