UNCONVENTIONAL TRADEMARKS IN THE WINE INDUSTRY 135 Furthermore, as underlined by Advocate General Ruiz-Jarabo Colomer in his opinion in the Arsenal Football Club case: “It seems to me to be simplistic reductionism to limit the function of the trade mark to an indication of trade origin. (…) Experience teaches that, in most cases, the user is unaware of who produces the goods he consumes. The trade mark acquires a life of its own, making a statement, as I have suggested, about quality, reputation and even, in certain cases, a way of seeing life. The messages it sends out are, moreover, autonomous. A distinctive sign can indicate at the same time trade origin, the reputation of its proprietor and the quality of the goods it represents, but there is nothing to prevent the consumer, unaware of who manufactures the goods or provides the services which bear the trade mark, from acquiring them because he perceives the mark as an emblem of prestige or a guarantee of quality. When I regard the current functioning of the market and the behaviour of the average consumer, I see no reason whatever not to protect those other functions of the trade mark and to safeguard only the function of indicating the trade origin of the goods and services”7. It stems from the above that trademarks are crucial factors that determine the consumers’ decision-making process, in more ways than one. In the words of Griffiths, “trademarks can gain a ‘psychological hold’ on the minds of consumers, which gives them a selling power above that of underlying goodwill”8. Therefore, it comes as no surprise that businesses want to make the most of a trademark’s advertising function, incorporating trademarks in their brand strategy; but why unconventional trademarks in particular? The answer lies in one of the core principles and objectives of branding – differentiation. In The New Strategic Brand Management, Jean-Noël Kapferer – one of the world’s most influential leading specialists on brands – defines a brand as follows: “a brand is not the name of a product. It is the vision that drives the creation of products and services under that name”9. Kapferer further considers that, in order to clearly define brand identity, one must answer a list of questions, including “what makes the brand different?”10. Differentiation is, therefore, one of the key components of branding. As brands have become one of the most valuable 7 Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 13 June 2002, §§ 46-47. 8 As cited in W. Cornish, D. Llewelyn & T. Aplin, op. cit., p. 659. 9 J. N. Kapferer, The New Strategic Brand Management: Creating and sustaining brand equity long term, Kogan Page, 4th Edition p. 171. 10 Ibidem, p. 172.
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