UNCONVENTIONAL TRADEMARKS IN THE WINE INDUSTRY 153 application, they could not be considered as departing from the industry standards to such a significant degree as to warrant the granting of a EUTM60. Bacardi appealed the examiner’s decision, contending that the combination of the bottle’s elements (the bright red wax seal, the light green colouring and the white label) provided a degree of distinctiveness that fulfils the respective requirement for registration. Besides, according to Bacardi, consumers are likely to observe small variations of detail when purchasing alcoholic beverages. The Board noted that when the sign (applied for) resembles the shape of the product or the product’s packaging, there is a greater likelihood of the shape being devoid of distinctive character. However, in this case and given Bacardi’s argument that the sign as a whole – and not just the shape of the bottle – is distinctive enough under trademark law, the Board finally agreed that the overall appearance was not purely decorative and could serve as an indication of origin, thus distinguishing Bacardi’s products from those of its competitors. V. CONCLUDING REMARKS The above analysis has demonstrated that businesses in the wine industry rely very much on unconventional trademarks in order to stand out and differentiate from their competitors. There is no doubt that attractive and memorable design drives consumer behaviour and constitutes a critical factor in the decisionmaking process. After all, who would not want to have a sip of the limitededition underwater wines of the Crusoe Treasure Winery, coming in bottles that bear the evidence of underwater ageing? However, the registration of non-traditional signs remains quite challenging and, although the EUIPO and European Courts appear willing to afford broader protection to aspects of design and aesthetic characteristics of the products, the requirement of distinctiveness and the doctrine of functionality impose significant restrictions on what can be registered. Wine businesses seeking to secure trademark protection for design features as part of their brand strategy must keep in mind that the purpose of trademark law is to strike a fine balance between protecting consumers from confusion and safeguarding traders against unfair competition and potential monopolies. 60 W. Fry, L. Moore, D. Cullen & A. Ní Uiginn, Bacardi 'Bottles up' its Distinctive Look with EU Trade Mark Registration, https://www.lexology.com/library/detail.aspx?g=7c2dc6fe-658f-41d5-bf79-bffc339d66ab, last accessed on 16 November 2020.
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