The Trade Marks Act 1994 was the result of the European Union's aspiration to approximate the trade mark laws of member states. Section 1 of the legislation defines a trade mark as any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. From this one can identify three necessary criteria for a trade mark to be registered: the mark must be a sign, it must be capable of being represented graphically, and it must be capable of being distinguished.
[...] It is very unlikely that the legislation intended to make registration of certain unusual marks possible. On the other hand, the legislation has very much opened up the possibility of registering unusual marks. The subsequent decision in Sieckmann spawned a series of cases, most notably the ones discussed above. Applications for these unusual marks are restricted by the Sieckmann criteria, but it does not seem that the ECJ have said explicitly that any unusual mark can definitely not be registered. [...]
[...] One could infer from this that the ECJ did not consider the Directive to facilitate the registration of sounds as trade marks, as a general rule. Taste is another controversial area. There does not appear to be any official ECJ judgment on this but the domestic case of Eli Lilly Co's Community Trade Mark Application  sheds some degree of light on the matter. This concerned the application for an artificial strawberry flavor for use in pharmaceutical products. The Office for the Harmonization of the Internal Market (OHIM) refused to allow the application on two grounds. [...]
[...] The first unusual trade mark application held before the ECJ was Sieckmann v Deutsches Patent and it concerned the registration of a smell, ‘methyl cinnimate' which the applicant described as ‘balsamically fruity with a slight hint of cinnamon'. He also provided the chemical formula for the smell. The ECJ consulted article 2 of the Directive in considering whether ‘graphic representation' included only signs which were capable of being represented visually, or if it included other signs as well. The ECJ decided that a sign did not necessarily have to be perceived visually provided that it could be represented through the use of images, lines or characters. [...]
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