private ownership of certain fundamental sensory signs runs counter to public policy in the sense of maintaining a competitive market or cultural commons. If, for example, someone attempted to trademark the basic smell of chocolate for beverages, one could contend that granting such a right would offend public policy by monopolising something that should remain free for all chocolatiers. This line of reasoning has not been tested, and it would stretch the conventional understanding of public policy in trademark law. Still, commentators have noted that a “stronger implementation” of this ground could potentially be used if the situation arose.91 The advantage of using the public policy ground would be that it avoids having to find technical flaws (like lack of distinctiveness) if, in fact, the mark were represented and distinctive; it squarely addresses the core objection that some things should not become private property. The CJEU in its decisions has thus far not had to employ these higherorder principles explicitly in the context of smells and tastes, because the more straightforward reasoning sufficed (e.g., “not a work” in Levola Hengelo and “not representable” in Sieckmann). However, the sensitivity to not overmonopolise is visible indirectly. In Sieckmann, one can sense the Court’s concern that allowing an unclear scent mark would create uncertainty and possibly grant a vague monopoly, so it set high clarity standards. In Levola Hengelo, the emphasis on identifiability can be seen as protecting others from unclear claims of copying a flavour. In future, if technology or other changes force a more direct confrontation, we can expect fundamental rights and public policy to be part of the conversation.92 V. CONCLUSION While immensely important in commerce and culture, the specific flavours and aromas of food largely elude ownership under current intellectual property law in the EU. Even after modernisation, EU trademark law has not been able to accommodate olfactory or gustatory marks due to the enduring requirement that a trademark be represented clearly, precisely, and objectively. As seen in the Sieckmann line of cases, no available technology or notation has yet satisfied these criteria for scents or flavours, and thus, such applications have invariably failed. Moreover, aside from representational issues, the inherently functional 91 ibid 243. 92 ibid 241. 288 MATIJA DAMJAN
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