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Smell CTMs

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Lawdit Solicitors - Expert Author

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24 June 2009

The "Smell of fresh cut grass" in relation to tennis balls was a rare registration of a smell mark theoretically paving the way for the protection of smell as CTM (Community Trade Mark).

The Second Board of Appeal began by setting out the purpose of the graphic representation requirement in art. 4 CTMR (Community Trade Mark Regulations), referring to its decisions in 3D Mark and Orange. In these matters it had held that graphic representation was an imperative necessity for conducting an examination and registration procedure.

The question then was whether or not the description of the smell of fresh cut grass gave clear enough information to those reading it to walk away with an immediate unambiguous idea of what the mark was when used in connection with tennis balls.

The Second Board of Appeal through artistic lawyering took the view that the "smell of fresh cut grass" did indeed satisfy those requirements and overturned the examiner's decision by stating that:

...the smell of freshly cut grass is a distinct smell that everyone immediately recognises from experience...

A smell mark was first granted in the US by the Trademark Trial and Appeal Board (TTAB) in 1990. This was for the registration of a fragrance in respect of embroidery yarn. described graphically in the application as "a high impact, fresh floral fragrance reminiscent of plumeria blossoms", basically flowery.

Smell marks are easy to keep track of numberwise but in this case TTAB seems to have relied heavily on the fact that the applicant was the only existing producer of scented yarn in the country and that customers, dealers and distributors of her scented yarns and threads recognised the applicant as the source of the goods.

In summary you'd be mad to try.

Tim Mount is a trainee solicitor, and can be contacted at tim.mount@lawdit.co.uk


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2009-07-05 18:07:34 in Legal Articles

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