Currently, olfactory trademarks are not acceptable as registrable by the EUIPO. According to the EU Trademark Guidelines, this restriction is due to the fact that the representation of the trademark must be clear, precise, self-contained, easily accessible, intelligible, durable and objective (Article 3(1) of EUTMIR), and the current state of technology does not allow these types of marks to be represented in this way. If we add to this the fact that the EUTMIR does not recognise the presentation of samples or specimens as an adequate representation of the trademark and that it is considered that the description of a trademark cannot replace the representation, because the description of a smell or taste is not clear, it seems obvious that those who wish to protect a smell (or taste) as distinctive in the European Union will have to wait for technology to come to their aid.
However, we note that other offices in Europe – have accepted such trademarks and we can only wonder why this is the case and to what extent the expectations of those seeking to curb a right to an odour may have been met.
The olfactory trademark on dart flights
In the United Kingdom, to take an example very close to the European Union, there is only one olfactory trademark registered for dart flights, allegedly reproducing the “smell of bitter beer”. Such data, incidentally, make up the description of the trademark registered in the UK Intellectual Property Office register. Faced with such a difference with the EUIPO’s view on the suitability of the description to replace the representation, we could not but consult aroma professionals to confirm or refute the possibility of representing an odour by means of a description such as the one in question.
Although we have not made an exhaustive research, these experts agree that, since the composition of beer is based on malt, hops and yeast, depending on the proportion of each of them, the aroma will be determined by some components or others. The fragrance of malts, for example, has notes of cereals, bananas, nuts, caramel, coffee or liquorice. Hops provide citrus, tropical fruit, floral, spicy and herbal characters. Note, then, to what extent a description can stick to the characteristics of a given aroma in an attempt to enable the recipient of the information to identify it. In any case, it seems clear that describing a smell by mentioning the product that usually emanates it (which need not be the only one, it should be recalled) does not seem to be a task of great precision. We therefore consider that the criteria adopted by bodies such as the UK Intellectual Property Office (UK IPO) provide too wide a margin for the protection that is intended to be granted to the applicant.
If we add to this the small number of registrations of this type that have been processed, not only in the United Kingdom but also in other European countries, it seems clear that waiting for a technological advance that allows a reliable representation of olfactory badges is a quite reasonable alternative. We shall see whether time will prove us right or wrong.
Article by Jaume Layola.