II. TRADEMARK PROTECTION OF OLFACTORY AND GUSTATORY MARKS IN EU LAW 2.1. The Legal Criteria: Signs, Representability, and Distinctiveness 2.1.1. Type of Sign Under EU trademark law, any sign capable of distinguishing goods or services of one undertaking from those of others may, in principle, serve as a trademark – provided it can be represented in the register with clarity and precision.3 This follows both from Article 3 of the Trade Marks Directive,4 which aligns Member States’ rules for the registration of national trademarks, as well as from Article 4 of the EU Trade Mark Regulation,5 which establishes EU-wide rules and conditions for the granting of an EU trademark. Notably, EU law does not categorically exclude any particular type of sign. In Dyson,6 the CJEU has affirmed that a mark need not be visual and that subject matter perceptible by any of the five human senses could potentially fulfil the function of indicating commercial origin.7 In other words, a smell or a taste is not ex ante barred from trademark protection by its nature; the key question is whether it can meet the legal criteria of graphical (as historically required) or objective representation and distinctive character as a badge of origin. 2.1.2. Representability A persistent hurdle for olfactory and gustatory marks has been the requirement that a trademark be represented clearly and precisely in official registers. In its seminal Sieckmann judgment,8 the CJEU set out strict standards for any trademark representation, which have since been codified in EU legislation. The representation must be “clear, precise, self-contained, easily accessible, intelligible, durable and objective”.9 In Sieckmann, an applicant sought to 3 Victor Danciu, ‘The Scent of a Trademark: Removal of Graphic Representability Requirement’ (IP Blog, 6 March 2019) <https://www.dennemeyer.com/ip-blog/news/the-scent-of-a-trademark-removal-of-graphic-representabilityrequirement> accessed 28 April 2025. 4 Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (recast), OJ L 336, 23.12.2015, p. 1–26. 5 Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (codification), OJ L 154, 16.6.2017, p. 1–99. 6 CJEU judgment of 25 January 2007, Dyson, C-321/03, ECLI:EU:C:2007:51, para. 30. 7 Simon Geiregat, ‘Trade Mark Protection for Smells, Tastes and Feels – Critical Analysis of Three Non-Visual Signs in the EU’ (2022) 53 IIC - International Review of Intellectual Property and Competition Law 219, 223. 8 CJEU judgment of 12 December 2002, Sieckmann, C-273/00, ECLI:EU:C:2002:748. 9 Sieckmann, para. 55. Onur Sahin, ‘The Past, the Present and the Future of Colour and Smell Marks’ (2016) 38 European Intellectual Property Review 504, 506. 275 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
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