or flavour clearly and objectively.20 Known conceivable methods for depicting a scent – listing a chemical formula, providing a gas chromatograph read-out, referring to a smell classification system, submitting a sample, or even using a colour-coded system developed by perfumers – have all been deemed inadequate under the Sieckmann criteria.21 A recent decision of the German Patent Court in 2023 illustrates this persistent challenge.22 An applicant attempted to register the smell of heather honey applied to golf balls, describing the mark in words and referencing a specific honey variety. The Court upheld the Patent Office’s refusal of the application, emphasising that even without the graphical requirement, the representation was not sufficiently unambiguous or objectively identifiable. The court reiterated that any element of subjectivity in the representation is impermissible.23 2.1.3. Distinctiveness The second core criterion is that any trademark – including a non-traditional one – must be capable of distinguishing the goods or services of one undertaking from those of others. In principle, there is no absolute bar to an inherently distinctive smell or taste mark, and a smell or taste could theoretically fulfil the essential function of a trademark (to indicate origin) if consumers recognise it consistently as a source-indicator.24 Advocate General Ruiz-Jarabo Colomer observed that “the olfactory memory is probably the best one that humans possess”.25 This would make a particular scent a strong brand identifier. Likewise, one can imagine a unique flavour that instantly evokes a product’s origin in the consumer’s mind.26 That said, the practical assessment of distinctiveness for scents and flavours tends to be stringent. Trademark authorities approach such applications with scepticism, often requiring proof of acquired distinctiveness through use, since consumers do not commonly perceive smells or tastes as brand signals absent extensive promotion.27 For example, a pleasant scent added to a product (e.g., a 20 Sahin (n 9) 509. 21 Marcel Permsel, ‘The Difficulty of Protecting Olfactory Marks’ (The IPKat, 11 2023) <https://ipkitten. blogspot.com/2023/11/the-difficulty-of-protecting-olfactory.htm> accessed 28 April 2025. 22 Bundespatentgerichtdecisionof20September2023,29W(pat)515/21,ECLI:DE:BPatG:2023:200923B29Wpat515.21.0. 23 Permsel (n 21). 24 Geiregat (n 7) 223. 25 AG Ruiz-Jarabo Colomer, opinion on CJEU 12 December 2002, C-273/00, Sieckmann, EU:C:2001:594, para. 29. 26 Geiregat (n 7) 223; Sahin (n 9) 510. 27 Geiregat (n 7) 224; Sahin (n 9) 510. 277 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
RkJQdWJsaXNoZXIy MTE4NzM5Nw==