SHARED-USE TRADEMARKS FOR THE GEOGRAPHICAL INDICATIONS 167 The evolution observed in the treatment of the issue and the fact that the agri-food legislation that gives the green light to the practice sets confusion as a limit show a particular risk that unfair conduct could be carried out. The transition from one situation to another, with different criteria in each case, leads us to consider whether it would be more appropriate, in order to achieve a fair balance of all the interests at stake, to seek an intermediate proposal that would adequately protect them, i.e. one that would consist of allowing operators to use their trademarks on products that have been recognised by different geographical indications, but complemented by an ethical commitment on their part so that self-regulation would be the basis for self-limitation. This measure’s purpose should be sought to protect competition and the interests of all actors (operators, competitors, regulatory councils and consumers), in line with the requirements of article 1 of Law 3/1991, of 10 January, of Unfair Competition (hereinafter LCD). It should also be borne in mind that shared-use trademarks are an appropriate practice to promote or ensure the dissemination on the market of one’s services [art. 2(2) LCD]. Moreover, the application of the LCD cannot be made conditional on the existence of a competitive relationship between the active subject and the passive subject of the act of unfair competition [art. 3(2)]. The question, as noted above, is whether operators are engaging in unfair competition with each other by using shared-use trademarks, when it comes to operators using different geographical indications for their wine products. In our opinion, an operator using the same trademark to identify different wine products (whether or not they are covered by different geographical indications) will definitely cause confusion among consumers, especially if “the risk of association on the part of consumers as to the origin of the service is sufficient to justify the unfairness of a practice” (art. 6). Consumers do not generally have a high level of food education that allows them to adequately distinguish all the information provided on the product’s label, and so, knowing a brand’s prestige concerning a particular product, they might associate that all the products identified with it have the same level of quality. However, as this practice has been legally and jurisprudentially recognised and as the administration itself is competent to authorise its use, one can only appeal to the ethical commitment of the operators. In other words, it would have to be assessed whether the codes of ethics constitute a possible solution to modulate the legal prescription allowing the use of shared trademarks under article 37(1) LCD23. The codes being 23 Article 37(1) LCD states that “business, professional and consumer corporations, associations or organisations may draw up, for voluntary adoption by business or professional persons, codes of conduct relating to commercial practices with
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