Wine Law

18  Article 7(1)(e)(i), regarding signs which consist exclusively of the shape, or another characteristic, which results from the nature of the goods themselves;  Article 7(1)(e)(ii), regarding signs which consist exclusively of the shape, or another characteristic, of goods which is necessary to obtain a technical result; and  Article 7(1)(e)(iii), regarding signs which consist exclusively of the shape, or another characteristic, which gives substantial value to the goods. Before examining each of the above grounds, the Court made a significant observation regarding the application of article 7(1)(e). Further to the Trademark Reform, the absolute grounds for refusal concerning shapes were extended to all “non-traditional” characteristics (“ or another characteristic ”), such as colour. However, since the case under examination commenced prior to the enactment of the Trademark Reform (i.e. 23 March 2016), the Court noted that the absolute grounds for refusal should apply in the previous wording, which did not include “another characteristic” 47 . Noting that the evidence ViTo submitted – consisting primarily of Internet images – did not take into account the sign as a whole (i.e. its colour, the letter B and the flame design element), thus not being sufficient and appropriate to support the argument that the bottle’s particular shape ( collio ) was widely used in the said market 48 , the Court dismissed ViTo’s claim on the trademark’s lack of distinctive character Interestingly, it happened a paradox (also highlighted in ViTo’s arguments): the Board of Appeal, on the one hand, dismissed the application of article 7(1)(b), thereby finding that the sign (at least at the point of examination from the EUIPO Examiner) is not devoid of distinctive character, but, on the other hand, held that the sign is not distinctive enough to give substantial value to the goods, thereby triggering the application of article 7(1)(e)(iii). The Court responded to this contradictory point by underlining that the EUIPO’s Board of Appeal never argued in its decision that the sign’s distinctive character is extremely reduced . As a matter of fact, such an argument is not even present in the Board’s decision but rather stems from a partial reading and interpretation of the decision by Vinicola Tombacco, based on the Board’s finding that 47 Ibidem , 48 §§ 15-19. 48 See supra note 48, § 30.