Back in 2018, we wrote about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, heretofore called only “The Prosecco People” to save my brain, opposing the trademark for a pet treats company over its branded doggy drink “Pawsecco.” The EU IPO, in one of the most bizarre trademark rulings I’ve ever seen, acknowledged that there was almost no chance for any actual customer confusion over the use of “Pawsecco”, but found in favor of The Prosecco People anyway, strictly because Prosecco was a well-known thing, and Woof and Brew’s pun was referencing a well-known thing. That is simply not the purpose of trademark law. The entire idea is that the public shouldn’t be confused in a given market of goods as to the origin of competing products. Pet drinks and Italian knockoffs of champagne seem fairly distinct in the marketplace.
As do alcoholic and non-alcoholic drinks, for that matter, and yet here come The Prosecco People again. This time, they are going after a French wine group that created a non-alcoholic sparkling grape drink and named it “Nosecco.”
A French wine group is challenging a decision that its non-alcoholic Nosecco brand unlawfully evoked the protected Italian category Prosecco. Les Grands Chais de France said the name wasn’t meant to rival Prosecco in the U.K., but rather to highlight the lack of alcohol and the sweetness of its own version.
“It’s emphatically saying ‘no’. No to alcohol, it’s no to being dry.” said Denise McFarland, a lawyer for the French group. “It sits there in gold and black,” on the label, she said Friday.
Here we’ll have to see just how and when British courts will break from EU precedent given the whole Brexit thing. But, if EU precedent still holds, it feels virtually impossible for the Nosecco people to win over The Prosecco People in this case. If pet drinks aren’t distinct enough from alcohol to stave off trademark opposition, non-alcoholic human drinks probably don’t stand a chance.
And, yet, you’d have to expect that ruling to carry the same admission over a lack of consumer confusion. After all, the whole point of the Nosecco name is to give a nod towards Prosecco while creating the distinction of the lack of alcohol. Prosecco, mind you, isn’t really a brand in and of itself. It’s a drink type, like Champagne. That it has protected status in the EU at all is fairly silly, but it’s still the case that Nosecco doesn’t compete with a single brand, but rather a loose consortium of Prosecco producers.
Even The Prosecco People are pointing to the idea that Nosecco brings “to mind” Prosecco.
The Italian producers said in a legal filing it was “abundantly clear” that the Nosecco brand brought to mind their own wine, which is protected by European Union rules on origin.
Well, yeah. That’s the entire point. Sort of like how the entire point of trademark law is to protect from customer confusion, which almost certainly doesn’t exist in this case. It would be nice if the courts could keep that in mind this go-round.