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Graphical Representation

For a Trade mark to be registrable, it must fulfil a set criteria. One of the requirements is that the Trade mark must have graphical representation, outlined in Section 1(1) of the Trade Marks Act 1994.

Sieckmann v German Patent Office (case C-273/00) issued on December 12, 2002, is widely recognised as the authority decision on the graphical representation of non-conventional trademarks under the European Trade Marks Directive.

The case involved a "methyl cinnamate" scent, which the applicant had described "as balsamically fruity with a slight hint of cinnamon". The ECJ ruled that (a) a chemical formula depicting this scent did not represent the odour of a substance, was not sufficiently intelligible, nor sufficiently clear and precise; (b) a written description was not sufficiently clear, precise and objective; and (c) a physical deposit of a sample of the scent did not constitute a graphic representation, and was not sufficiently stable or durable. The case illustrates difficulties with the graphical representation of scent marks, as the ECJ held that these representations, whether individually or collectively, could not satisfy this requirement.

In the UK, an application which does not meet the requirement of graphical representation will face an objection under Section 32(2)(d) of the Trade Marks Act because it does not contain a graphical representation of the trade mark. The applicant is notified in writing about this and given a period during which he must rectify the deficiency. Failure to remedy the deficiency within the time period will result in the application being deemed never to have been made.

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