WINE BOTTLES: TRADEMARKS OR JUST NARROW NECK CONTAINERS

Traditional Limitations and Current Opportunities for Innovation

October 1, 2018

www.dlapiper.com October 1, 2018 0 Today

Issue:

 Consumers walking through their local liquor store and browsing the vodka or whiskey aisles are met with a dizzying array of different colours, shapes, and textures

 A similar walk down the red wine aisle reveals rows of generally non-descript, non-distinctive, similarly sized, dark and slender bottles

 Usually only a closer inspection of wine labels allows consumers to tell various wines and producers apart

Questions:

 What has prevented wine producers from employing unique bottle designs to market their wines to the extent exhibited by their liquor counterparts?

 If there is room in the wine industry to employ unique bottle designs, can such designs be legally protected?

www.dlapiper.com October 1, 2018 1 Ancient History

KVEVRI

Large terracotta vessel used by Ancient Georgians to store wine. Earliest known storage method.

AMPHORA

Wine transportation and storage vessel made out of clay and popularized by the Ancient Greeks and Romans.

www.dlapiper.com October 1, 2018 2 Sir Kenelm Digby (11 July 1603 - 11 June 1665)

Eccentric, Effusive, English

Courtier, Diplomat, Alchemist

Father of the modern wine bottle

Sir Digby’s bottles contained many of the same design elements that can still be found in wine bottles today: they were globular in shape with a collar, a tall, tapered neck, and a punt

www.dlapiper.com October 1, 2018 3 The BIG Three

Burgundy Bottle Softer reds and rosés Delicate shoulders, long neck, Light, bright, but complex wider body Pinot Noirs and Chardonnays

Bordeaux Bottle Full bodied reds Long body, higher shoulders, Complex, high in alcohol, good for long term aging astringent, robust

Cabernet Sauvignons and Merlots

Alsatian/Mosel Bottle Whites Clear colour, slim, delicate, Sweet, fresh, light and delicate flute-like shape Rieslings and Gewürztraminers www.dlapiper.com October 1, 2018 4 Traditional Consumers

 As winemaking spread across the world, new wine regions adopted the designs and bottle shapes of the Old World as a way to communicate certain well-established wine characteristics to their consumers

 The message that was hoped to be conveyed to consumers was that, despite being made by new producers, these wines had the same taste and prestige as those old, great European vintages

 Consumers were being implicitly conditioned to link certain bottle designs with certain sensory characteristics

 It is this conditioning that still pervades the industry today Opus One, Mondavi-Rothschild Napa Valley, New World Wine www.dlapiper.com October 1, 2018 5 Early Innovators

Châteauneuf-du-Pape, Rhône

Distinctive embossing: Papal Crown and St Peter’s Keys to Heaven wikipedia

Image: Thomas E Source: Affentaler (“Monkey Valley”)

Distinctive embossing: Large monkey on bottle of Pinot Noir, oldest and best known of German red wines

www.dlapiper.com October 1, 2018 6 Early Innovators

German Franken Wines

Distinctive bottle “Bocksbeutel”: Flat, bulbous shape borrowed from field worker’s canteens

French Provençal

Distinctive bottle “Skittle”: Clear, curvy, hourglass shape

French Vin Jaune

Distinctive bottle “Clavelin”: 62cl instead of the typical 75cl

www.dlapiper.com October 1, 2018 7 The Old vs New Wine Consumer Baby-Boomers

 Currently make up the largest share of the wine consuming market  More likely to be high frequency drinkers  Generally greater disposal incomes  Favour traditional designs and customs over innovation  However, their domination of the wine market is decreasing as they age into retirement

Generation X and Millennials

 Prefer bottle designs that are bold and distinctive when buying bottles over $10  Gravitate toward designs that are innovative, fun, and unpretentious when looking for a wine under $10

 Consequently, at both ends of the pricing spectrum, there is room to innovate in bottle design, though the type and degree of innovation is linked to selling price www.dlapiper.com October 1, 2018 8 Modern Innovators Homard Wine

Lobster Bottle

Bridgeview Vineyard

Blue Moon Riesling , 2017

Corbett Canyon

Olive Oil-styled tapered bottle Martin NgMartin design ilustration &

www.dlapiper.com October 1, 2018 9 Modern Innovators Rosemount Estate

Diamond-based Bottle searcher.com - MWine Truro Vineyards

Lighthouse Bottle http://tahomabeadworks.blogspot.com JoJo

Meeker Vineyards

Hand-print Bottle

www.dlapiper.com October 1, 2018 10 Trademarks

 Any sign that creates a link in a consumer’s mind between product and producer

 Any distinctive symbol may become a trademark if it acts to identify a single source for a product

 The purpose of a mark is to distinguish the wares or services of one business from those of another

 A trademark need not be limited to a word or a design placed on a label or a simple embossing placed on a bottle

 A trademark may consist of the design of a bottle, as shown previously, but distinctive colours, sounds or textures may all become distinctive of a particular wine producer

www.dlapiper.com October 1, 2018 11 Non-Traditional Marks

Freixenet

Distinctive black and yellow matte colour scheme

Diageo Brands

Old Parr Bottle Texture

www.dlapiper.com October 1, 2018 12