Wine Law

8 While the criteria for assessing the distinctive character of 3D shape-of-products trademarks are no different from those applicable to other categories of trademarks, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same 13 since average consumers are not in the habit of making assumptions about the origin of products based on their shape or the shape of their packaging, in the absence of any graphic or word element. However: “(…) the way in which the relevant public concerned perceives trade marks is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (Lloyd Schuhfabrik Meyer, paragraph 26). In the present case, it is common ground that the operators on the market of the goods concerned, which is highly competitive, are all faced with the technical necessity of packaging for the marketing of those goods and subject to the need for them to be labelled. In such a context, certain operators have for several years sought in the shape of the packaging the means to differentiate their goods from those of the competition and to attract the public's attention. It thus appears that the average consumer is quite capable of perceiving the shape of the packaging of the goods concerned as an indication of their commercial origin, in so far as that shape presents characteristics which are sufficient to hold his attention ” 14 . Products that do not have an inherent shape require packaging in view of their commercialisation, which must be assimilated, for the purposes of examining a trademark application, to the shape of the product. To assess distinctiveness of a 3D shape, it must be checked whether the sign departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin 15 . Nevertheless, the Tribunal of the European Union (TEU) has ruled that there is a need to systematically define the sector in which the comparison is made to the very products for which registration is sought, Moreover, it cannot be excluded that consumers of a given product may be influenced, where appropriate, in their perception of 13 ECJ 29 April 2004, C-456/01 & C-457/01 (Henkel), §§38-39. See also ECJ 7 October 2004, C-136/02 P (Mag Instrument), §§30-32. 14 TEU 3 December, 2003 Nestlé Waters T-305/02. 15 Henkel, §39, see footnote 14.