Wine Law

15 IV.2.2. Wajos GmbH In December 2015, Wajos GmbH filed an application before the European Union Intellectual Property Office (EUIPO), to register a 3D bottle shape (Image 11) for edible oils and beverages, as a trademark in classes 29, 30, 32 and 33. Both EUIPO’s Examination Division and the Board of Appeal rejected the application arguing that the trademark applied for was devoid of distinctiveness. However, the General Court – to which the decision was appealed – took the view 40 that the average consumer can perceive the shape of a bottle as an indication of origin. Under examination, it is possible to see that the shape – due to the more pronounced central bulb, the “ bead ” – deviates from the norm in the sector, thus drawing consumers’ attention, and so the shape can be registered as a trademark. IV.2.3. Vinicola Tombacco and Sandro Bottega One of the most interesting cases focusing on the registrability of a bottle-shaped 3D mark in the wine industry is that of Vinicola Tombacco and Sandro Bottega, with the case touching upon more than one absolute grounds for refusal concerning the registering of a non-traditional trademark. In 2013, Sandro Bottega (Colle Umberto, Italy) filed applications before the EUIPO for the registration of two trademarks in Class 33: a three-dimensional mark of a bottle’s shape, together with the letter “B”, one in colour gold and one in shimmering pink (Image 13). In 2016, Vinicola Tombacco (also referred to as “ViTo”) challenged the validity of Bottega’s trademarks, submitting an action of cancellation before the EUIPO for 40 Judgment of the General Court (Sixth Chamber) of 3 October 2018, Wajos GmbH v European Union Intellectual Property Office. Image 11. Wajos’s bottle Image 13. Sandro Bottega’s bottles