Luxembourg, 05/12/2001 (Agence Europe) - The European Court of Justice has to decide whether an odour may be the subject of a brand, which its Advocate General Ruiz-Jarabo Colomer disputes in his conclusions in the Sieckmann case. "At present, odours are not susceptible of being the subject of an adequate graphic representation and may not constitute a brand", says Damaso Ruiz-Jarabo Colomer in his conclusions in which Proust and Baudelaire rub shoulders with Freud, Plato and Aristotle.
Ralf Sieckmann, a German, lodged a request of an "olfactory brand" with the German patents office. The Office refused the request. Mr. Sieckmann appealed to the Bundespatentgericht which, before ruling, asked the Court if an odour could constitute a brand in the sense of the European directive (that the German law had transposed: Ed.).
Ralf Zieckmann had ensured that the chemical formula for this brand - C6H5-CH-CHOOCH - be available in the local laboratory. He had also deposited a recipient containing a sample of the odour that he described as "fruited balsamic with slight touches of cinnamon"
For the Advocate General, an odour may be a distinctive sign. He then explains that an odour has an independent existence to the object. For example, an apple may smell like an apple but a cleaning product may also smell of an apple. The odour is distinct from the object; it is therefore distinctive and could not be registered as a brand. But the European directive and German law demand a second, sine qua non, condition, he states: it has to be the object of a graphic representation, that is to say it must be able to be drawn.
Whereas, he says, the description of an odour is subjective: "What does balsamic mean? What does the fruited character cover? What can the intensity of a touch cinnamon be?"
"Even were it longer, this description would not gain in precision and it would be impossible to determine, without a doubt persisting, in what the odour in question consists", the Advocate General stipulates. The magistrate claims to know the latest scientific techniques for "drawing" an odour, but, according to him, they have not been perfected.
Legally-speaking, Damaso Ruiz-Jarabo notes that the Office in Alicante has only ever once agreed to register "the odour of freshly hewn grass" that the Dutch company Senta Aromatic Marketing had requested of it. "A pearl in the desert", an "isolated decision intended to remain isolated", the Advocate General explains. He then cites the journal of the Office in Alicante, "oami news" in which the Office stipulates that it would stick to its practice that consists in demanding a two-dimensional graphic representation for all brands that are not verbal.
In the United Kingdom, the Trade Mark Registry had accepted two olfactory brands: the scent of rose applied to tyres, the odour of beer on dart feathers. In the Zieckmann case, the British Government had said that the practice was in the process of changing: in June 2000, the Trade Mark Registry had refused to register the scent of cinnamon applied to articles of furniture. In France, perfumes may be the subject of copyrights, and in Luxembourg Lacome secured the registration of an olfactory brand for its products.
The Advocate General points out that taste and smell are "chemical" senses compared to "mechanical" senses that are sight and sound. For Plato and Aristotle, the pleasure they procure are "less pure, less elevated than the later two. Kant presented them as "sterile" senses, Hegel as being incapable of procuring genuine recognition of the world and the self, Freud and Lacan relegated them to the world of animals and linked the evolution of civilisation to the weakening of these senses.
To illustrate the ability of smell to fulfil a function of object representation Damaso Ruiz-Jarabo Colomer cites Baudelaire and his poem "Perfume" and the novel of the same name by Patrick Suskind, likewise acts of "immediate sensorial perceptions" by Marcel Proust and Samuel Beckett.