The time that a wine bottle consisted of a classic label with the name on it in ornate letters is over. There are many original wine bottles: fully coated bottles in various colors but also wines with original labels.
It is therefore not surprising that the labels, and even whole bottles, are registered as a trademark and design. However, especially in case of 3D marks, the question arisse what is protected and how large the scope of protection is.
In a recent opposition case, Bodegas Navarro Lopez, owner of the Rojo wine, filed an opposition against the wine bottle Rouge. Rojo and Rouge have the same meaning and are depicted in a bright red color on the bottle. But is it enough for confusion?
No. The EUIPO states that both Rojo and Rouge are general words and therefore have no distinctive character. However, this only applies to the consumer who understands the meaning of these words. For the remaining people, these words are distinctive. These words however are visually and aurally very different. The graphic elements differ as well. There is therefore no question of confusion.
The whole point of this case is firmly addressed by the EUIPO: “Contrary to what the opponent seems to believe, the concept of putting the verbal elements directly on the bottle of the earlier mark instead of using a label is not protected as such. Neither is the concept of creating a pattern with verbal elements. It must be kept in mind that, in this case, these are the only things that the signs have in common visually.”
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“Trademark protection gives freedom to do business.”