marks. Since a groundbreaking 1990 case, In re Clarke,41 at the US Trademark Trial and Appeal Board (TTAB), it is established that a scent can function as a trademark if it is non-functional and distinctive. In that case, the TTAB allowed the registration of the scent of Plumeria blossoms for sewing thread, finding that customers could recognise the pleasant scent as a source indicator for the thread, and it added no utilitarian function. Over the years, some scent trademarks have been registered in the US, such as a cherry scent for automotive lubricants (an arbitrarily added scent).42 However, US authorities apply a stringent functionality and distinctiveness test: any scent inherent to the product’s use or appeal (for instance, the smell of a perfume, or a scent added to a product to mask odour) will be deemed functional and unregistrable. Flavour trademarks in the US have been virtually impossible to register for precisely that reason – the flavour of a food or medicine is usually considered functional. A notable example is the 2013 case of In re Pohl-Boskamp,43 where the TTAB rejected a peppermint flavour mark for a pharmaceutical spray, agreeing with the examiner that even if peppermint oil was “inactive,” it could have ancillary benefits (making the spray more pleasant or effective) and thus competitors would need to use it, rendering it functional.44 The TTAB also noted that flavour or scent marks can never be inherently distinctive; an applicant must prove that customers associate the flavour or scent with a single source (a heavy evidentiary burden).45 In practice, no flavour mark for food has been registered in the US, and the few scent marks are niche and require careful proof.46 This illustrates that even in a system open to non-traditional marks, market realities and legal doctrines tightly limit olfactory and gustatory trademarks. III. COPYRIGHT PROTECTION OF TASTES AND SMELLS 3.1. The Notion of “Work” and CJEU’s Levola Hengelo Decision Copyright law protects original, expressible forms of creativity described as “works.” Only works are protectable subject matter.47 Neither the Berne 41 In re Clarke, 17 U.S.P.Q.2d 1238 (TTAB 1990). 42 Clark Lackert and Jill Wasserman, ‘Non-Traditional Trademarks: United States.’ [2009] World Trademark Review 112, 113. 43 In re Pohl-Boskamp GmbH & Co., 106 U.S.P.Q.2d 1042. 44 Siesel (n 28). 45 ibid. 46 Lopez (n 39) 352. 47 Tatiana Eleni Synodinou, ‘The EU Concept of “Work” and Non-Conventional Subject Matter’ in Enrico 280 MATIJA DAMJAN
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