136 WINE LAW assets of a business, the search for new ways to build brands that achieve a differentiated status in the customers’ minds has become of central importance for companies11. So, how can a brand differentiate its position in a competitive market? Among other things, design, given that a design-focused approach can uncover opportunities for segmentation and market differentiation12. Design has become an essential element for branding, serving as the cohesive factor for all elements that configure a brand experience and represent an unequivocal source of differentiation13 – a memorable and aesthetically pleasing design attracts the consumers’ attention and becomes an essential element in brand experience and marketing success14. Companies select such designs and other features (i.e. colours, materials, textures or logos) because of their “attractiveness”, as to drive consumer behaviour. The businesses will then want to protect their investment in such attractive designs by registering them as “unconventional” trademarks, thus gaining exclusive rights over design for an unlimited period (which, as we will examine below, in Section IV, can become problematic). The interdependence between unconventional trademarks and branding is perfectly illustrated by Deven Desai: “advertising encompasses branding. Branding is about an overall image built in a variety of ways. If one includes the protection of the advertising function in trademark law, protecting a specific instance of advertising and branding as manifested by a range of non-traditional marks should not be surprising; it seems almost required”15. The wine industry is no exception to that rule. III.2. Examples from the Wine Industry In the wine sector, differentiation can be quite challenging, considering the limits imposed by legislation (e.g. in labelling) and the growing competition in 11 Jordi Montaña, Francisco Guzmán & Isa Moll, Branding and Design Management: A Brand Design Management Model, 23 J. MKTG. MGMT., pp. 829-840 (2007). 12 Gabriella Lojacono & Gianfranco Zaccai, The Evolution of the Design-Inspired Enterprise, 45 MIT SLOAN MGMT. REV. 75, pp. 77-78 (2004). 13 Jordi Montaña, Francisco Guzmán & Isa Moll, op. cit. 14 Ibidem. 15 Deven Desai, Should Trademark Laws Protect Non-Traditional Trademarks? A Look at How Marketing Practices Try to Capture Essences. © Deven Desai 2018. Oxford University Press, p. 133 (2018).
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