Wine Law

144 WINE LAW IV.2. Cases Regarding Registration of 3D Bottle Shapes in the Wine and (Alcoholic) Beverages Industry IV.2.1. COCA-COLA On 29 December 2011, the Coca-Cola Company filed an application for the registration of a Community trademark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. Registration as trademark was sought for the three-dimensional sign in the shape of a “contour bottle without fluting” (Image 10). OHIM initially rejected the application, as it found that the shape of a bottle (as depicted in the application) lacked distinctive character in respect of the goods covered, with the Office not accepting Coca-Cola’s argument that the shape of the bottle was distinctive and had become associated with Coca-Cola. The company then filed a notice of appeal with OHIM against the examiner’s decision, which was dismissed by the Second Board of Appeal on the ground that the mark applied for was devoid of distinctive character. More specifically, the Board found that “the goods concerned were intended for everyday consumption and were principally aimed at the general public. In view of the mass-produced nature of the goods at issue, the average consumer of the goods concerned was not particularly attentive and was likely to have an imperfect recollection of trade-marked products”38. In response to this decision, Coca-Cola brought the case before the General Court, which confirmed, however, the previous arguments in that the bottle “does not possess any characteristics that distinguish it from other bottles available on the market. The mark sought is thus a mere variant of the shape of a bottle which does not enable the consumer to distinguish Coca-Cola’s goods from those of other undertakings”39. The Court’s arguments summarise the core concerns around the registration and protection of unconventional, non-traditional trademarks: consumers are not accustomed in making assumptions about the origin of a product based on their shape. Therefore, as mentioned, in order for such a shape to stand out and, thus, be considered distinctive and protectable under trademark law, it must 38 Judgement of the General Court (Eighth Chamber), 24 February 2016, in Case T‑411/14, The CocaCola Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). 39 Ibidem, § 51. Image 10. Coca-Cola’s bottle

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