EU opens door for sound marks: will scent marks follow?

Abstract

For national trade mark offices in the European Union (EU) and for the Office for Harmonisation in the Internal Market (OHIM), graphical representation was the insurmountable obstacle to the registration of non-traditional trade marks, such as sound, scent and taste marks, since the Sieckmann case. The removal of the graphical representation requirement for registration, as advocated by Dr Ralf Sieckmann, recommended by the Max Planck Institute and proposed for amendment of Directive 2008/95, and Council Regulation 207/2009, will open the door for the initial registration of non-traditional trade marks in the EU.Scents, with their intimate access to the amygdala, are capable of conditioning consumers to remember a certain brand and to influence their moods. In the preparatory discussions leading up to the final drafts, sound files were mentioned as proper ways to disclose sound marks to competitors. Technology has reached a threshold whereby scents can be digitally encoded, thus travel the Internet, be stored, downloaded and decoded by the emittance of scents via affordable scent printers connected to smart phones.This and other technologies will be assessed in light of the remaining Sieckmann representability requirements: ‘clear and precise, self-contained, easily accessible, intelligible, durable and objective.’ Because scent marks can, just like sound marks, be represented with technology using digital files, the Internet and a play gadget, the ‘emancipation’ of scents into the group of sensorial trade marks that are registrable in the EU seems inevitable.