150 WINE LAW findings that neither of the essential elements of the sign, i.e. the shape of the bottle and colour (gold, in this Decision), whether evaluated separately or as a whole, are adequate to give substantial value to the products53. The shape of the bottle (“collio”) has been extensively used by Italian wine producers for decades, particularly for sparkling wines, and it must be regarded as a rather unremarkable variant of the shapes commonly used in the wine sector. Accordingly, the colour gold – also frequently used to decorate packaging – does not add to a notable and particular design, despite its mirror effect on the bottle surface. As a result, the Court dismissed Vinicola Tombacco’s claims and allowed registration of Bottega’s trademarks in both cases (gold and pink). IV.2.4. GLOBEFILL INCORPORATED In the Globefill case54, the applicant filed for the registration of a skull-shaped vodka bottle (“a 3D representation of a skull in clear glass with a short tubular opening on the top, which is rounded and slightly wider round the edge, with a flat base”55; Image 14) in Classes 32 and 33. The EUIPO Cancellation Division examined an application for the declaration of invalidity, justifying that the skull-shaped bottle (a) was devoid of distinctive character and (b) created an aesthetic appeal to consumers, thus adding substantial value to the products [under article 7(1) EUTMR, points (b) and (e)(iii), respectively]. Skullduggery Rum Limited – the cancellation applicant – argued that the registered trademark was devoid of distinctiveness and that the average consumer is not used to perceiving bottles as a source identifier, which is the primary function of a trademark. Therefore, according to the applicant, since the 53 See supra note 46, § 59. 54 Skullduggery Rum Limited v. Globefill Incorporated, Cancellation No. 20063 C, “Invalidity” of 22 October 2019. 55 Crystal Head vodka 3D shape mark invalidity application: Who you gunna call?!, Hayleigh Bosher, published at the IP Kat Blog https://ipkitten.blogspot.com/2019/11/crystal-head-vodka-3d-shapemark.html, last accessed on 17 November 2020. Image 14. Globefill’s bottle
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