Wine Law

UNCONVENTIONAL TRADEMARKS IN THE WINE INDUSTRY 145 possess specific characteristics that will draw the consumer’s attention and drive a future purchase, as a source indicator. It is interesting to note that both the Office and the General Court based their argumentation to reject Coca-Cola’s application on the lack of distinctive character, without examining the absolute grounds for refusal regarding shape – and, more specifically, the shape resulting from the nature of the goods themselves. IV.2.2. WAJOS GMBH In December 2015, Wajos GmbH filed an application before the European Union Intellectual Property Office (EUIPO), to register a 3D bottle shape (Image 11) for edible oils and beverages, as a trademark in classes 29, 30, 32 and 33. Both EUIPO’s Examination Division and the Board of Appeal rejected the application arguing that the trademark applied for was devoid of distinctiveness. However, the General Court – to which the decision was appealed – took the view40 that the average consumer can perceive the shape of a bottle as an indication of origin. Under examination, it is possible to see that the shape – due to the more pronounced central bulb, the “bead” – deviates from the norm in the sector, thus drawing consumers’ attention, and so the shape can be registered as a trademark. 40 Judgment of the General Court (Sixth Chamber) of 3 October 2018, Wajos GmbH v European Union Intellectual Property Office. Image 11. Wajos’s bottle

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