134 WINE LAW III. THE VALUE OF UNCONVENTIONAL TRADEMARKS AND THE INTERDEPENDENCE WITH BRANDING STRATEGIES III.1. The Advertising Function of a Trademark Before examining the relationship between unconventional trademarks and branding, it is essential to understand the trademark’s functions and assess the role they play in advertising. In Section II, we saw that a trademark is a sign capable of distinguishing the goods or services of one undertaking from those of other undertakings. Therefore, its core economic function is to indicate origin to convey information about the commercial origin and, consequently, quality of the goods and services to which it is affixed, thus enabling consumers to make an informed purchasing decision. However, the origin is not the only function of a trademark – although arguably the most important one –, with the Courts having also recognised: a) the quality or guarantee function, whereby trademarks merit protection because they represent qualities associated by consumers with specific products and services, thus guaranteeing that such products and services respond to consumer expectations, and b) the investment or advertising function, whereby marks are tokens around which investment in the promotion of a product or service is built and that investment is a value which deserves protection as such5. Both the quality and advertising functions of a trademark have been well-established under EU case-law. In BergSpechte, the Court explicitly recognised three economic functions of a trademark, the origin, quality and advertising function: “Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising”6. 5 W. Cornish, D. Llewelyn & T. Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, Sweet & Maxwell, 7th Edition, p. 655. 6 Judgment of the Court (First Chamber), 25 March 2010, In Case C‑278/08, Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni, trekking.at Reisen GmbH § 31.
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