Sieckmann v Deutsches Patent- und Markenamt
A sign can be registered as a trade mark only if it can be represented graphically in a way that is clear, precise, self contained, easily accessible, intelligible, durable and objective, which a smell could not.
Facts
Mr Sieckmann applied to register a trade mark in Germany consisting of the smell of methyl cinnamate, a chemical, which he described as balsamically fruity with a slight hint of cinnamon. He represented the mark by its chemical formula, a written description and a sample of the substance. The German Patent Office refused the application, and the German court referred questions to the Court of Justice.
Legal principle
The Court of Justice held that a trade mark may consist of a sign which is not itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self contained, easily accessible, intelligible, durable and objective. These are known as the Sieckmann criteria. A chemical formula, a written description and a sample did not satisfy them, because few people would recognise the smell from the formula, a description was not sufficiently precise, and a sample was not durable. The requirement of graphical representation has since been replaced in EU and UK law by a requirement of clear and precise representation.
Related cases on trade marks: registration
- Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH Case C-529/07, [2009] ECR I-4893
- Hauck GmbH & Co KG v Stokke A/S Case C-205/13, EU:C:2014:2233
- Koninklijke KPN Nederland NV v Benelux-Merkenbureau (Postkantoor) Case C-363/99, [2004] ECR I-1619
- Koninklijke Philips Electronics NV v Remington Consumer Products Ltd Case C-299/99, [2002] ECR I-5475
- Libertel Groep BV v Benelux-Merkenbureau Case C-104/01, [2003] ECR I-3793
- London Taxi Corp Ltd v Frazer-Nash Research Ltd [2017] EWCA Civ 1729, [2018] FSR 7
- Procter & Gamble Co v OHIM (Baby-Dry) Case C-383/99 P, [2001] ECR I-6251
- Shield Mark BV v Joost Kist Case C-283/01, [2003] ECR I-14313
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