166 WINE LAW the use of a “common” mark for wines to designate precisely those corresponding to an area protected by the designation of origin”. After reviewing these legal provisions and court decisions, it must be stated that, at present, without any doubt, this practice of operators using the same trademark to identify different wine products (i.e. not belonging to the same geographical indication or the same level of protection) has legal and jurisprudential backing. There remains the necessary and consequent reflection on the constitutionality of the regional precepts that refer to this aspect, given that these are provisions that should only be adopted by the State, as it alone has the power to legislate on industrial property matters. A different issue is whether the Autonomous Communities should have the sanctioning power over practices that create confusion with the distinctive signs used and affect the geographical indications in their territory. IV. THE FAIRNESS IN THE USE OF SHARED TRADEMARKS Having explained that the use of the same trademark is possible on wines recognised by different geographical indications and even on products that do not have this special recognition, the lawfulness of this conduct must be considered. Moreover, one should bear in mind that the extraordinary circumstance that arises is that the trademark owner becomes a competitor of itself, by using the same sign to identify products protected by different geographical indications of the same level of protection, products that correspond to different levels and even products that are not protected by any geographical indication. Therefore, it is questionable whether the aforementioned legal and jurisprudential backing does for this practice does not eliminate the risk of confusion and deception that consumers may suffer. It is essential to take into account not only the practices or conduct between operators but also the possible consequences for the protection of consumer rights. Thus, the question arises as to whether the behaviour of the operator using co-branding would not be contrary to good faith, as basic unfair conduct, or whether it could not be qualified as an act of deception, an act of confusion, an act of comparison, an act of exploitation of another’s reputation or an act of infringement of rules. Concerning unfair commercial practices towards consumers, one may ask if, in this particular case, they might not be misleading practices through confusion for the consumers or misleading practices relating to codes of conduct or other quality marks.
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