register a chemical compound’s scent as a mark, supporting the application with a chemical formula,10 a written description,11 and a physical sample. The CJEU ruled that none of these means sufficiently satisfied its seven-fold criteria. A chemical formula was deemed an inadequate representation because it denotes the substance rather than the sensory impression and is not readily interpretable by the average person as a specific smell.12 A written description of the scent was found to lack objectivity and clarity13 since words like “fruity” or “cinnamon” are subjective and open to individual interpretation.14 And a sample of the scent was unacceptable because it does not constitute a graphic representation and is not a durable or easily accessible form of representation (perfume samples can evaporate or degrade).15 In short, the Court concluded that existing methods could not represent the smell with the required precision and objectivity, and the application was refused. These strict representability standards, now sometimes called the “Sieckmann criteria,” set a high bar that olfactory and taste marks have struggled to meet in practice.16 Yet, the Court was careful not to close the door to possible technological developments in future which might make it possible to represent a smell objectively. 17 Significantly, EU trademark law evolved with the elimination of the old “graphic representation” requirement from the recast Trade Marks Directive and the EU Trade Mark Regulation. The current rules allow a sign to be represented “in any appropriate form” using generally available technology, not necessarily by graphic means, as long as the representation is clear, precise, self-contained, etc., as per the Sieckmann standard.18 This legislative change was designed to facilitate registration of non-traditional marks (such as sound, motion, or multimedia marks) by permitting digital file formats (audio, video, etc.). For example, a sound mark can now be represented by an audio file instead of a musical score.19 However, the representability hurdle remains effectively unchanged for smells and tastes. No generally accepted “appropriate form” exists to capture a scent 10 Pure methyl cinnamnate or C6H5CH=CHCOOCH3. 11 “Balsamically fruity with a slight hint of cinnamon.” 12 Sieckmann, para. 69. 13 Sieckmann, para. 70. 14 Eduardo Zamora and Sara del Rio, ‘Legal protection of fragrances through Intellectual Property’ (Lexology, 11 2021) <https://www.lexology.com/library/detail.aspx?g=30a8bdbd-00b0-4161-89de-698bd6206e9c> accessed 28 April 2025. 15 Sieckmann, para. 71. 16 Geiregat (n 7) 226–228; Zamora and del Rio (n 14). 17 Sahin (n 9) 509. 18 Danciu (n 3). 19 ibid. 276 MATIJA DAMJAN
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