[COLUMN] How can wines and spirits be protected? (Part 2/3)

The wine and spirits sector plays a central role in the French and European economies. It is a strategic pillar of the agri-food industry, a major export driver, and a cultural symbol deeply rooted in national identity. The entire industry represents thousands of farms, hundreds of unique wine-growing areas, and centuries of internationally recognized expertise. Beyond their economic value, wines and spirits contribute to a cultural prestige that feeds France’s reputation as a land of gastronomic and artisanal excellence. Here is the second part of Nathalie Dreyfus’s three-part column.

The cultural importance of wines and spirits in France and Europe explains their increased exposure to legal and commercial risks. Wine products are among the most affected by counterfeiting, misappropriation of reputation, parasitism, but also cybersquatting, identity theft, and fraudulent practices in e-commerce.

After examining the objects of protection for wines and spirits and the instruments of protection such as Protected Designations of Origin (PDO/AOC) and Protected Geographical Indications (PGI), Nathalie Dreyfus turns her attention here to the sector-specific characteristics of copyright.

Additional protection through intellectual property instruments

The protection of wines and spirits cannot rely exclusively on distinctive signs or specific mechanisms under wine law. Companies in the sector also use more traditional intellectual property tools to ensure comprehensive, consistent, and lasting protection for their creations. Among these instruments, copyright, design rights, and trademarks with a geographical dimension play a strategic role in building a diverse and defensible intellectual heritage.

Copyright

Copyright is one of the pillars of intellectual property protection in France and offers particularly broad coverage for intellectual works, provided they bear the imprint of their author’s personality. However, the world of wine and spirits raises specific questions regarding its relationship with the sensory qualities of products.

Traditionally, copyright protects works that are perceptible to the senses, but only those that can be identified in a clear, precise, and objective manner. However, taste and smell do not meet these requirements. Tasting is a subjective experience that varies according to individuals, contexts, and even material conditions. Aromas, flavors, and mouthfeel cannot therefore be understood as works in the legal sense of the term.

European case law has consistently reiterated that a creation can only be protected if its object can be identified with sufficient precision and objectivity, a condition that is incompatible with olfactory or gustatory creations. Consequently, a wine’s recipe, its blend, its characteristic aromas, or even a winery’s “style” cannot claim copyright protection, unlike certain musical compositions characterized by a stable and reproducible form.

On the other hand, copyright offers particularly effective protection for everything related to the visual identity of the product. Players in the sector make extensive use of it, in particular to defend artistic labels, which, due to their design, graphic composition, or typography, can reflect a truly creative approach. This is also the case for visual packaging, including illustrations, patterns, drawings, or the overall graphic design affixed to the bottle or case. They are also found in photographs of bottles—often featured in catalogs, promotional campaigns, or digital media—as well as in all visual communication, provided it is sufficiently original.

The key requirement remains originality, understood as the expression of a free and creative choice. A standardized label, using purely functional elements or traditional industry codes without any identifiable creative input, cannot be protected. However, a carefully crafted, unique design that plays on combinations of colors, shapes, lines, textures, or an atypical composition can easily meet this requirement.

The advantage of copyright lies in its simplicity: no formalities are required, protection arises from the mere fact of creation. However, it remains essential to keep evidence of dating, working versions, and identification of the author in order to ensure effective enforceability in the event of a dispute.

Design law

The wine and spirits sector makes extensive use of design law, which is one of the most powerful tools for protecting the appearance of products. Indeed, the shape of the bottle, the design of the neck, the details of the cap, the label as a whole, the packaging, and even the overall appearance of a box are all elements that can confer significant commercial value, allowing a company to distinguish itself from its competitors.

Registering designs: a strategic and accessible tool

Registration can be done with the INPI for national protection, with the EUIPO for a registered Community design (RCD), valid throughout the European Union, or with the WIPO via the Hague System for broader international coverage.

The main advantage of registration is the clarity and security it provides: once registered, the right allows you to oppose any reproduction or imitation of the protected appearance. Companies can thus secure iconic shapes, such as bottles with recognizable lines, atypical silhouettes, or innovative packaging.

This right is particularly relevant in the wine and spirits sector because it has two major characteristics. First, it is affordable, allowing both small and large companies to implement an effective protection strategy. Second, it involves a simple registration procedure, with no in-depth examination of novelty or individual character, which speeds up implementation.

European law also offers the possibility of an unregistered design (unregistered RCD), which is automatically created upon first disclosure in the EU. It provides three years of protection against slavish copying.

In a sector where packaging frequently changes with each vintage and limited editions are regularly launched, this tool is very useful for protecting short-lived visual creations.

However, this mechanism has significant limitations, in particular the demonstration of novelty and distinctive character remains essential in the event of a dispute, which can be complex to establish. Furthermore, the unregistered RCD protects only against copying, and not against independent similarities. Finally, the protection expires quickly, making it necessary to strike a balance between filings and disclosures.

The limitations and difficulties of design law

Despite its effectiveness, design law has several structural limitations that should be anticipated.

First, in the absence of substantive examination, many registrations can be undermined as soon as a third party requests their invalidation.

If the form was not truly new or if it incorporated elements already disclosed in the sector, the protection may collapse.

Second, public disclosure plays a decisive role: once the design has been made public, the creator has 12 months to file the application. After this period, the novelty is destroyed, making registration impossible. Stakeholders must therefore implement a rigorous internal monitoring strategy to avoid losing rights through negligence.

Finally, protection applies exclusively to the shape and not to the taste or smell of the wine or spirit. Reproducing the taste of a product without copying the protected shape does not therefore constitute an infringement of design rights, which limits the practical scope of the system to visual packaging alone.