Wine Law

13 distinctiveness (see the criteria abovementioned). According to the CJEU, in Procter & Gamble v OHIM : “ the relevant public’s perception is not necessarily the same in relation to a three-dimensional mark consisting of the shape and colours of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent from the appearance of the products it denotes. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element and it could therefore prove more difficult to establish distinctiveness in relation to such a three- dimensional mark than in relation to a word or figurative mark” 37 . IV.2. Cases Regarding Registration of 3D Bottle Shapes in the Wine and (Alcoholic) Beverages Industry IV.2.1. Coca-Cola On 29 December 2011, the Coca-Cola Company filed an application for the registration of a Community trademark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. Registration as trademark was sought for the three-dimensional sign in the shape of a “contour bottle without fluting” (Image 10). OHIM initially rejected the application, as it found that the shape of a bottle (as depicted in the application) lacked distinctive character in respect of the goods covered, with the Office not accepting Coca-Cola’s argument that the shape of the bottle was distinctive and had become associated with Coca-Cola. The company then filed a notice of appeal with OHIM against the examiner’s decision, which was dismissed by the Second Board of Appeal on the ground that the mark applied for was devoid of distinctive character. More specifically, the Board found that “ the goods concerned were intended for everyday consumption and were principally aimed at the 37 Procter & Gamble v OHIM [2004] E.T.M.R. 1176 ECJ, § 36. Image 10. Coca-Cola’s bottle