A smell can fulfill the function of a brand, i.e. to differentiate the goods or services of one company from those of other companies. This means that an odor can generally be entered as a trademark in the trademark register.
The problem here - more than with the abstract color mark and with special sound marks - is the requirement of graphic representability. To this end, the ECJ has confirmed in its Sieckmann decision ( ECJ , case C-273/00 ) and later - referring to it - in the Libertel and Heidelberger-Bauchemie decision that a brand can only be represented graphically if it is clear, is clear, self-contained, easily accessible, understandable, permanent and objective.
Previous example (a registered trademark)
The only example of a registered odor mark (000428870) that has meanwhile become ready for cancellation, deleted at the end of 2007 after it was not renewed:
Description: Consists of the smell of freshly cut grass applied to the product.
Registered goods: tennis balls.
- ECJ Ralf Sieckmann v German Patent and Trademark Office: JUDGMENT OF THE COURT OF JUSTICE: Trademarks - Legal alignment - Directive 89/104 / EEC - Article 2 - Trademarks - Signs that can be represented graphically - Smell or smell signs - The leading decision of the ECJ, such as ( new) trademarks (forms) should be presented for registration in the EU
- Kutscha, Christiane: Die Geruchsmarke, Hamburg, 2005 ISBN 3-8300-2087-2
- Fröhlich, Stefan: Fragrances as intellectual property, Tübingen, 2009 ISBN 978-3-16-149868-8
- Sessinghaus, Karel: Smell and Taste Brands, Bielefeld, 2004 ISBN 3-7694-0940-X
- ECJ C-273/00. Retrieved December 28, 2018 .