qualities available. If a company could trademark the scent of cinnamon for bakery products, or the taste of a particular spice blend in curry, it might deplete the commons of smells or tastes and hinder others in making products with those flavours. Academic commentary has indeed suggested that reluctance by courts to recognise gustatory and olfactory marks is partly driven by an unspoken policy instinct to avoid propertisation going too far.82 However, this policy concern is not explicitly codified as grounds for refusing a trademark under current EU law. The CJEU has cautioned that unconventional marks must be assessed using the same standards as any other marks (principle of equal treatment of types of marks). One cannot refuse a type of sign solely because it’s unusual if it otherwise meets the legal criteria.83 Thus, de lege lata, examiners must find a concrete legal basis, such as a lack of clarity in representation or nondistinctiveness, to refuse it. As we have seen, those concrete bases have sufficed to stop all smell or taste marks so far. If one day someone finds a way to clearly represent a scent and show acquired distinctiveness, the law as written would oblige the office to register it, absent some other ground. This has led scholars to consider whether adjustments in the law or its interpretation are needed de lege ferenda to address the public domain concern. One approach would be for the EU legislator to exclude certain categories of signs from trademark protection explicitly. Geiregat suggests the EU legislature should evaluate whether to carve out smells, tastes, and the like from trademark registrability if that is deemed necessary on policy grounds.84 A possible counterargument is that the existing filters (representation, distinctiveness, functionality) are enough to prevent undue monopolies, and only truly nonproblematic cases would ever get through. 4.2. Fundamental Rights as a Balancing Tool If intellectual property rights on smell or taste were recognised, the need to leverage them with fundamental rights would also arise. The enforcement of trademarks or copyright over smells or tastes might limit the public’s ability to use basic sensory cues and thus interfere with fundamental rights, such as the freedom of expression and information (Art. 11 of the EU Charter of Fundamental Rights) or the freedom to conduct a business (Art. 16 of the 82 Geiregat (n 7) 242. 83 This was noted in case Linde (CJEU judgment of 8 April 2003, Linde, Winward and Rado, joined cases C-53/01 to C-55/01, ECLI:EU:C:2003:206) para. 42 and 46. 84 Geiregat (n 7) 243. 286 MATIJA DAMJAN
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