Glass half empty as wine trademark appeal rejected

The EU General Court has dismissed an Italian wine producer’s appeal after the European Union Intellectual Property Office (EUIPO) refused to register a trademark it applied for.

Nosio applied to trademark the word ‘Mezza’ at the EUIPO in November 2015. The applied-for mark covers goods in class 33: “Alcoholic beverages, in particular wines and sparkling wines.”

The EUIPO examiner refused registration on the grounds that the term ‘mezza’ relates to a type of Italian wine bottle with a capacity of 37.5cl—equating to half a wine bottle.

According to the examiner, this could be interpreted by the relevant public (namely Italian consumers) as “a clear reference and unequivocally to a ‘half bottle’”.

Nosio then applied to limit the goods and services covered by the applied-for trademark to alcoholic beverages in bottles and/or containers with a capacity greater or less than 37.5cl.

Nosio also filed an appeal against the EUIPO’s decision in August 2016.

In March 2017, the Fifth Board of Appeal at the EUIPO rejected the limitation and appeal, claiming the limited containers were not sufficiently clear and precise and that the applied-for term ‘Mezza’ was devoid of any distinctive character.

In its appeal at the EU General Court, Nosio said that the board did not carry out an overall examination of all the alcoholic beverages covered in the applied-for trademark. Nosio argued that the appeal board's decision contains no reason why the term 'Mezza' is devoid of any distinctive character in relation to alcoholic beverages other than wines and sparkling wines, such as spirits and liquors.

The company said that, unlike wines and sparkling wines, spirits and liquors would not be marketed in 37.5cl bottles. Therefore, for these products, the term 'Mezza' would not be used to indicate a specific bottle size, Nosio said.

The General Court agreed with the board and said (in French) that the average Italian-speaking consumer would believe that the term ‘Mezza’ would be an indication of how the goods were presented.

Regarding the requested limitation of goods, the court said that a restriction of the products “cannot be allowed if it’s liable to give rise to legal uncertainty as to the extent of the protection of the mark”. It added that the goods covered by the application must be “clearly and precisely” identified if they are to be entered into the register.

Nosio also claimed that even if the term ‘mezza’ is used to identify a bottle of wine with a 37.5cl capacity, this is not reflective of how other alcoholic beverages, such as spirits, are contained. The applied-for mark is therefore not purely descriptive, according to Nosio.

The General Court disagreed with this claim and said that the term ‘Mezza’ would “be perceived by the relevant public as a clear and unambiguous reference to the form in which the products in question are presented”. The court also said that although other types of alcohol are not marketed in 37.5cl bottles, they could be in the future.

Nosio’s appeal was dismissed by the court and it was ordered to pay the costs.

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