Wine Law

14 general public. In view of the mass-produced nature of the goods at issue, the average consumer of the goods concerned was not particularly attentive and was likely to have an imperfect recollection of trade-marked products ” 38 . In response to this decision, Coca-Cola brought the case before the General Court, which confirmed, however, the previous arguments in that the bottle “ does not possess any characteristics that distinguish it from other bottles available on the market. The mark sought is thus a mere variant of the shape of a bottle which does not enable the consumer to distinguish Coca- Cola’s goods from those of other undertakings ” 39 . The Court’s arguments summarise the core concerns around the registration and protection of unconventional, non-traditional trademarks: consumers are not accustomed in making assumptions about the origin of a product based on their shape. Therefore, as mentioned, in order for such a shape to stand out and, thus, be considered distinctive and protectable under trademark law, it must possess specific characteristics that will draw the consumer’s attention and drive a future purchase, as a source indicator. It is interesting to note that both the Office and the General Court based their argumentation to reject Coca-Cola’s application on the lack of distinctive character, without examining the absolute grounds for refusal regarding shape – and, more specifically, the shape resulting from the nature of the goods themselves. 38 Judgement of the General Court (Eighth Chamber), 24 February 2016, in Case T ‑ 411/14, The Coca-Cola Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). 39 Ibidem , § 51.