a Community trademark for the scent of freshly cut grass for tennis balls, based on a simple verbal description of the smell.32 This early OHIM decision found that the description was distinctive and met the then-required graphical representation standard.33 However, what was possible in the 1990s is no longer possible after Sieckmann and the ensuing clarification of the law.34 After 2002, neither EUIPO nor national offices registered any purely olfactory marks due to the stringent representability rule. All later attempts have failed at the examination stage or on appeal. The “strawberry aroma” case (Eden SARL)35 in 2005 was one such failed attempt at the General Court level.36 Since then, applicants have been mainly dissuaded from even trying to register tastes or smells as EU trademarks. A review of EUIPO practice confirms that no gustatory trademark (taste mark) has ever been registered in the EU, and the consensus in literature and practice is that it remains de facto impossible under current conditions.37 Even scents, arguably more amenable to branding (e.g., a perfume’s smell), have no successful registrations under EU law to date due to a lack of an acceptable representation format.38 The situation may evolve if technology provides new methods (for example, scientists are working on digital olfactory signature systems), and indeed, commentators suggest that scent trademarks may eventually “become part of our reality” with advancing technology.39 For now, though, one cannot secure a trademark monopoly on the smell or taste of a product. Businesses instead rely on alternative strategies: for example, using traditional trademarks (logos and names) to protect the brand identity of food products, and guarding their flavour or aroma formulations through the secrecy of recipes, rather than attempting an unregistrable olfactory or gustatory mark.40 2.3. United States’ Perspective United States’ trademark law, like EU law, does not per se exclude nonvisual marks. In fact, the US has been slightly more permissive with scent 32 OHIM (EUIPO) BoA Decision R 156/1998-2 (11 Feb 1999). 33 Geiregat (n 7) 226. The mark expired in 2006 and was not renewed. Sahin (n 9) 508. 34 Geiregat (n 7) 227. 35 General Court judgment of 27 October 2005, Eden SARL v OHIM, T-305/04, ECLI:EU:T:2005:380. 36 Sahin (n 9) 510. 37 Geiregat (n 7) 238. 38 Zamora and del Rio (n 14). 39 ibid; Amara Lopez, ‘Digitizing Scent and Flavor: A Copyright Perspective’ [2020] Michigan Technology Law Review 347. 40 Zamora and del Rio (n 14). 279 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
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