Wine Law

17 One of the first cases to address the issue of aesthetic functionality in Europe was Bang & Olufsen v OHIM 43 , in which the General Court found that the design of Bang & Olufsen’s loudspeaker is a critical element in the consumer’s choice, even if the consumer also takes the good’s other characteristics into account. The Court noted that the shape for which the registration was sought reveals a very specific design and the applicant itself admits that this design is an essential element of its branding, increasing the appeal of the product at issue, that is to say, its value 44 . The Court also referred to evidence, namely extracts from distributors’ websites and online auction or second- hand websites, that the aesthetic characteristics of that shape are emphasised first and that the shape is perceived as “ a kind of pure, slender, timeless sculpture for music reproduction, which makes it an important selling point ” 45 . Accordingly, the General Court reached the decision that the shape in question gives substantial value to the goods concerned. It is interesting to note that, what was perceived as a very strong distinctive character (“ the design is an element which will be very important in the consumer’s choice” ) was, at the same time, critical in determining that the shape gave substantial value to the goods [under 7(1)(e)(iii) EUTMR] and was, thus, not registrable. Going back to Sandro Bottega’s case, on 22 March 2017, EUIPO’s Cancellation Division dismissed Vinicola Tombacco’s grounds for invalidity, taking the view that the additional distinctive features in Bottega’s contested mark created an overall impression, which was sufficient to confer distinctive character. The case was then brought before EUIPO’s Board of Appeal, which, in turn, confirmed that decision, leading to Vinicola Tombacco then filing an appeal before the EU General Court. The Court issued its decision on 08 May 2019 46 , examining the following absolute grounds for refusal, brought forward by ViTo:  Article 7(1)(b), regarding signs which are devoid of any distinctive character; 43 Judgment of the General Court (Eighth Chamber), 6 October 2011, In Case T-508/08, Bang & Olufsen A/S v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). 44 Ibidem , §§ 73-74. 45 Ibidem , § 75. 46 Decision on Bottega’s gold trademark: Judgment of the General Court (Sixth Chamber) of 8 May 2019 in Case T-324/18, Vinicola Tombacco (VI.TO .) Srl v European Union Intellectual Property Office and Sandro Bottega .