142 WINE LAW which is necessary to obtain a technical result; (iii) the shape, or another characteristic, which gives substantial value to the goods”29. According to the points (i), (ii) and (iii) above, the common denominator in the absolute grounds for refusal regarding shapes is known as the doctrine of functionality. Functionality is a doctrine based on the assumption that specific shapes and product features are so important for the traders’ freedom to compete in the market, that they must remain in the public domain, free of exclusive rights30. In other words, unencumbered competition in the market overrides the public interest to protect consumers from confusion and safeguard rights-holders’ reputation31. As Advocate General Ruiz-Jarabo Colomer observed in his Opinion on Philips32, the immediate purpose in barring registration of merely functional shapes or shapes that give substantial value to the goods is to prevent the exclusive and permanent right, which a trademark confers from serving to extend the life of other rights, which the legislature has sought to make subject to ‘limited periods’. When it comes to registering shapes as trademarks, there is a risk of creating a perpetual right in design features, which may block other competitors from legitimately using similar design elements, thus hindering competition in the market. In such a scenario, trademark registries would become design registries, as Jacob L. J. notes in Unilever v Nestlé33. In other words, design features should be subject to design law, not trademark law (and its benefits). There is a public interest in “ensuring that natural, functional, or ornamental shapes may be freely used by all”34. It must be noted that not all absolute grounds have the same effect to the applicant – while article 7(1)(b) can be overcome by proof of acquired distinctiveness, that is not the case with point (e). More specifically, even if a sign is considered “devoid of distinctiveness” – thus falling under the respective 29 Article 7, Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark. 30 C. J. Ramirez-Montes, Louboutin Heels and the Competition Goals of EU Trade Mark Law, 19 UIC REV. INTELL. PROP. L. 38 (2019), p. 39. 31 Concerns about the potential monopolies brought on by TM rights were raised in Britain back in the 1850s, when upon discussions of establishing a trademark register, there were considerable concerns for this new idea of property right, as it could allow the first rights-holders to appropriate signs for marking their goods, which would in turn create obstacles for later competitors; in W. Cornish, D. Llewelyn & T. Aplin, op. cit., p. 642. 32 Opinion of Advocate General, Ruiz-Jarabo Colomer delivered on 23 January 2001, in case C-299/99, §§ 30-31. 33 Unilever v Nestlé [2003] ETMR 681, § 18. 34 A. Folliard-Mongurial, Distinctive Character Acquired Through Use: The Law and The Case Law, in TRADE MARK USE 409 (Jeremy Phillips & Ilanah Simon eds., 2005).
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