Wine Law

152 WINE LAW IV.2.5. BACARDI & COMPANY Interestingly, a few years before the Crystal Head Vodka case, the EUIPO Board of Appeal examined the aesthetic appeal of a diamond-shaped bottle for alcoholic drinks and spirits58 (Image 15). The Board, in this case, held that there is substantial value based on the aesthetic characteristics of Bacardi’s diamondshaped bottle, thus refusing registration of the trademark for alcoholic drinks and spirits. Notwithstanding, the company was successful on a different case before the EUIPO’s Board of Appeal59, regarding the registration of its bottle-shaped mark including the green tint to the glass of the bottle, the shape of the bottle and a red circular badge representing a family emblem (Image 16). In December 2017, Bacardi applied to register the above figurative sign as a European Union Trademark (EUTM), for a list of goods in Class 33. The EUIPO examiner initially refused the registration on the grounds that the sign was devoid of distinctive character and that the average consumer is not used to distinguishing the origin of goods based on the form of a product’s container. Furthermore, the examiner argued that the elements of the sign (i.e. the green bottle, wax seal and bright red label) are largely used as decorative badges within the alcoholic beverage industry and, as depicted by Bacardi in the 58 Bacardi & Company v. Occhi Blu Foundation, Case R1313/2012-1 (EUIPO First Board of Appeal 2013). 59 Case R01737/2018-4. Image 15. Bacardi’s diamond bottle Image 16. Bacardi’s bottle mark

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