Luxembourg, 15/01/2003 (Agence Europe) - According to the Court of Justice, a scent cannot be registered as a brand in the sense of the European directive. The Court considers that the German Patents and Brands Office was right to refuse to grant an "olfactory brand" to Ralf Sieckmann from Germany. Mr Sieckmann wanted to lodge a chemical formula - CdH-CH-CHOOCH3 - with an annex with a small container with a sample of this scent described as "fruity balsamic with a slight hind of cinnamon" The Court was joined by eleven judges in adding more weight to their final decision, indicated legal experts.
The court indicates that few people recognise a scent as a chemical formula. A chemical formula does not represent the scent of a substance but the substance as it is, explained the Court. An "invisible" sign can perhaps constitute a brand on the condition that it is the subject of a graphical representation that is exact and complete in itself, easily accessible, intelligible, sustainable and objective. The judges therefore believe that this excludes scents. And in conclusion, an olfactory trait, together with the demands for graphic representation that are not fulfilled by a chemical formula, or by a description or written words, by the lodging of a scent sample or combination of these elements.
In order to explain the refusal at the German Patents and Brands Office, based on Article 2 of EC Directive of 1998 on relevant brands: can constitute brand under signs that are susceptible of a graphic representation on the condition that these traits are clearly distinguishable from the products or services of a company or those of other companies. Ralf Sieckmann objected to the Federal Patents Office (Bundespanetgericht) in Germany.
Uncertain about the interpretation to give this text at the Federal Court if the traits such as scents or noises are not seen visually can be represented by other means.
The Alicante Office has not accepted a olfactory community brand: "the scent to freshly cut grass" at the request of the Dutch company Senta Aromatic Marketing. The British Trade Mark Registry company had also registered a rose scent applied to tyres and that that for beer for dart wings. The decisions appear to go on forever. In France perfumes can by protected by authors' rights and In Luxembourg, the Lancôme company register a olfactory brand (see conclusion of the Advocate General Ruiz Jarabo Colomber in EUROPE 6 December 2001).