SHARED-USE TRADEMARKS FOR THE GEOGRAPHICAL INDICATIONS 161 owner’s exclusive right over the trademark [art. 34(1)], entitling him to use it on all those products he deems suitable and for which it has been registered. On the other hand, in the specific regulations governing quality labels in the agrifood sector, both at the state and autonomous community levels. The main state regulations for the protection of geographical indications are Law 24/2003, of 10 July, on Vines and Wine (hereinafter LVV) and the alreadymentioned LDOIGP. In both cases, it is also necessary to take into account the regional provisions issued after each of them, due to the different scope of the legal recognition of the possibility of using shared trademarks. Thus, in the LVV, this behaviour is considered exclusively as an infringement, with article 40(1)(b) classifying as a very serious infringement “the failure to include on the labels and presentation of wines sufficient elements to clearly differentiate their classification and origin, in order to avoid confusion among consumers, resulting from the use of the same trademark, trade name or company name in the marketing of wines corresponding to different levels of protection or coming from different geographical areas”. Indirectly, by establishing this infringing conduct, the LVV was endorsing the possibility of using the same trademark to market wines corresponding to different levels of protection or from different geographical areas. It is worth highlighting the qualification as “very serious” regarding the lack of sufficient differentiating elements to avoid confusion among consumers. Following in the footsteps of the state regulation – i.e. considering this behaviour as an infringement –, but also stressing the possibility of using this type of mark in relation to the protection of the origin and quality of wine products, the regulations adopted by the various autonomous communities, such as the Basque Country, Galicia, Castile and León, Aragon and Andalusia, stand out in chronological order. In the Autonomous Community of the Basque Country, Law 5/2004, of 7 May 2004, on Wine Regulation, after establishing that, when it comes to the protection of the origin and quality of the wines of this community and their scope of protection, “trademarks, trade names or company names referring to protected geographical names may only be used on wines entitled to them, without prejudice to the provisions of Community regulations on the designation, name, presentation and protection of wine products” [art. 26(3)], adds a precaution regarding shared use trademarks [art. 26(4)]11. 11 This provision specifically states that “where the same brand, trade name or company name is used for the marketing of wines corresponding to different levels of protection or coming from different geographical areas or different designations of origin, operators must indicate their origin clearly on the labels and presentation of the wines in order to avoid, in all cases, confusing consumers. The management bodies shall be responsible for ensuring the protection and prestige of the designation of origin and consumer protection”.
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