Unconventional Trade Marks
So you want to register a colour as a trade mark?
It is very difficult to do so.
Following the case of Libertel (c104/01) the European Court of Justice decided that to be represented graphically, colour marks must be presented in a way that is Âclear, precise, self contained, easily accessible, durable and objective.
The court determined that providing a sample of the colour on paper is not sufficient by itself to satisfy the requirement on graphical representation of the sign. Â
To satisfy the graphical representation requirement, it is possible to use an international colour identification system, like Pantone, RAL and Focoltone. These provide a code that represents the colour and is precise enough for anyone using the code to recognise the colour.
Smell Trade Marks
In Sieckman C104/01 the ECJ ruled that a smell trade mark does not satisfy the requirements of graphical representation if it is presented in the form of chemical formula, by description in words, or deposit of the odour. An olfactory mark is in principle, capable of registration but in practice very difficult to represent.
Shield C283/01 the European court of justice confirmed that sounds Âmust be capable of being regarded as trade marks provided that they are capable of distinguishing goods and services of one undertaking from those of other undertakings and are capable of being represented graphically.Â Â
Sound marks, like smell marks, are not in themselves capable of being perceived visually, but they must nevertheless fulfil the requirements of being represented graphically on the application form.
The acceptability of a sound mark is that it like word and other forms of trade mark must be a distinctive sign. The average consumer must be able to perceive the sign as meaning that the goods and services are exclusively associated with one undertaking.
In principle, there is nothing to prohibit movement marksÂ from being trade mark, provided they can be used to distinguish the goods or services from those of other undertakings and are capable of beingÂ represented graphically.
To be represented graphically a short film may be represented as the stills from each frame that will make up the mark when played one after another. The application should also include the fact the mark is a moving image, what the image depicts, how the images are involved ie the movement and sequence of the images.
Holograms may be the future of trade marks but for now they are still science fiction. For a hologram to meet the requirements of graphical representation, it is necessary for the application form to contain representations of each of the various views depicted in the hologram. This will ensure that third parties will be able to see all material features of the mark.
As I have shown above, to register a non traditional trade mark is very difficult and in most cases will result in rejection either due to the fact it is not capable of being represented graphically or because it is not distinctive enough to separate the goods from one undertaking to another.