Olfactory Trademarks... What About Perfumes?

Author:Mr Diogo Antunes
Profession:Inventa International
 
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Today I would like to talk about olfactory trademarks, but what about perfumes?

In the world of industrial property, more specifically - Trademarks - there was a huge buzz around the new Directive 2015/2436 of the European Parliament and of the Council of 16 December 2015 and the new EU Regulation 2015 / 2424 of the European Parliament and of the Council of 16 December 2015.

The new Regulation entered into force on March 23rd of 2016, however some provisions only entered into force on October 1st of 2017, since it was necessary for the National Institutes and the European Institute itself to be able to adapt to the new provisions, in particular Article 4 of this regulation. In order to do this, it was necessary to adapt the computer and procedural systems to accept the new rules effectively.

Regarding the New Directive, Member States need to transpose it until January 14th of 2019.

The major change announced by the Community Instruments was the elimination of the requirement of graphic representation. As we know, invisible signs in the light of the Jurisprudence and previous legislation had numerous difficulties to demonstrate its graphical representation, without even addressing the issue of distinctiveness. Within the non-visible signals, the sound marks may be the ones that cause the least problems. Regarding the olfactory marks the Court and EUIPO, former OHIM, had a very restrictive interpretation on the graphical representation of such signals.

This new legislation could give a new light to the registration of unconventional signs, especially the olfactory marks, however as we will now analyze the changes announced may have brought nothing new.

The Jurisprudence that determined all the understanding about graphical representation of the olfactory trademarks goes back to the famous SIECKMANN case.

In that case the applicant intended to register the olfactory trademark "balsamic-fruity odor with slight cinnamon notes" for various services in classes 35, 41 and 42 (such as catering, advertising, agricultural services, etc.).

The applicant described the odor as being "pure chemical substance methyl cinnamate (a cinnamic acid methyl ester") and added a sample of the odor and its chemical formula - C6H5-CH = CHCOOCH.

The Court first of all stated that olfactory trademarks may be registered, provided that they comply with the requirements laid down for the trademarks. As for the graphic representation, it must enable the signal to be...

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