Wine Law

ADVERTISING IN FRANCE: A FOOL’S GAME? 301 2.1.2. T HE IMPACT ON TRADEMARKS As mentioned before, according to the law, indirect advertising is broadly defined, by article L.3323-3 of the Public Health Code, as any advertising in favour of an entity, service, activity, product or article that is not an alcoholic beverage but that, by its graphics, presentation, name, trademark , emblem or anything else that may remind of an alcoholic beverage 15 – thus covering any advertising for a non-alcoholic product that could remind an alcoholic one. As a result, a trademark for an alcoholic drink could prevent a prior trademark holder form making an advertisement for its own trademark, according to Loi Evin, as it could be seen as a forbidden indirect advertising. Contrary to the principle of speciality that governs trademark laws, as a result of Loi Evin, the holder of a prior trademark filed for products or services that are not even remotely similar to those of class 33 (alcoholic drinks) could argue that the holder would be deprived of the right to use his own trademark freely and have the second trademark cancelled. The High Court decided so in the Diptyque case in 2012. Moreover, the Hennesy’s Cognac trademark was already a trademark for candles, which was cancelled in 2012 after a criminal case 16 . Thus, Loi Evin also insidiously undermines the constitutional property right over trademarks 17 . Likewise, an availability search must be extremely thorough when it comes to alcoholic trademark in France. 2.1.3. E XCLUSION OF COLLECTIVE COMMUNICATION Law No. 2016-41 of 26 January 2016 18 has recently reduced the scope of Loi Evin. According to this law, contents, images, representations, descriptions, comments or references shall not be considered as advertising if they relate to 1) a production region, 2) toponymy, 3) a geographical indication, 4) a terroir, 5) an itinerary, 6) a production zone, 7) know-how or 8) the history or the cultural, gastronomic or landscape heritage linked to an alcoholic beverage which has a distinction of quality or origin. 15 With the exception of produced put on the market before 1 January 1990. 16 Cass. com. (Court of Cassation Commercial Chamber) no. 12-11753, 20 November 2012. 17 Eric Agostini, “Méfaits et retraits de la loi Evin”, Vin, Droit & Santé, 2013, Les Editions Hospitalières, pp. 27 et seq . 18 Article L. 3323-3-1 of the Public Health Code.