UNCONVENTIONAL TRADEMARKS IN THE WINE INDUSTRY 151 particular 3D shape did not deviate from the norms of the alcoholic beverages sector, it was not capable of distinguishing the rights-holder’s goods from those of its competitors and, thus, should not have been registered in the first place. Furthermore, Skullduggery Rum Limited claimed that the sign, although not entirely distinctive (so as to fulfil the distinctiveness threshold required by trademark law), was different enough from other shapes used in that sector, to attract consumers because of its aesthetic characteristics, thus adding substantial value to the goods56. The applicant also referred to the rationale behind the absolute grounds for refusal regarding shapes and the monopoly concerns when granting (exclusive, perpetual) trademark rights to a good’s technical, natural or aesthetic characteristics, which should be subject to design and/or patent law (see above under Section IV.1), arguing that Globefill was using the skull design to attract consumers into purchasing the product. Concerning the first argument, the Cancellation Division, taking into account evidence submitted by Globefill, which demonstrated that the shape of the Crystal Head skull was significantly different from the 3D bottle-shaped marks on the trademark registry, found that the shape of the bottle indeed deviated from the sector’s norms and was distinctive enough to be registered as a trademark. Regarding the second argument, the Cancellation Division examined evidence from both parties, on the consumers’ reaction to the aesthetics of the bottle and the relation to the quality of the product (including evidence submitted by Globefill on product winning blind test awards). Siding with the trademark owner, the Cancellation Division concluded that it was not the packaging’s aesthetic appeal but the product itself that motivated consumers into purchasing that particular brand57. 56 It is interesting to note that this case too brought forward the paradox already discussed by Vinicola Tombacco in the Sandro Bottega case (see above under Section IV.2.3) in that the sign was considered by the applicant as not being distinctive enough to satisfy the source identification function required by trademark law but – at the same time – it was, according to the applicant, distinctive enough to attract consumer attention, thus adding substantial value to the goods. 57 See supra note 38, p. 676
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