Can Non-Traditional signs, such as colours, scents and sounds be protected?
A Comparative Analysis Between Europe, United States of America and Germany
The primary purpose of a Trade Mark (TM) is to allow the consumers to identify the origin of goods or services and therefore to be able to distinguish the goods or services of one undertaking from those of other undertakings. For this reason, TM protection in Europe as well as in the United States of America(US) was traditionally ‘reserved for marks, that are easily perceived as source identifiers such as words, names, logos, and graphic symbols’.However, gradually all over the world, acknowledging the potential contained therein, different kind of signs have been sought to be trademarked such as colours, scents sounds etc.Although there were views that such non-traditional signs could serve perfectly as TMs and they were a great innovative step for the modern business world, there were many who doubted the potential of these signs to be perceived as source identifiers.
Two of the greatest hurdles that non-traditional signs had to overcome in order to obtain TM protection is the distinctiveness and graphical representation (GR) requirements. The former requirement is necessary, so as to establish that the sign will be capable to indicate the origin of goods or services and to distinguish them from those of other undertakings and the latter is necessary so as to allow third parties to see the extent of the monopoly and the precise nature of a registered TM.
This paper will provide a comparative study between Europe and the US regarding the registrability of colour, scent and sound marks as TMs, and by examining the way the TM law of each country treats these non-conventional signs we will be able to conclude whether such signs have a place in the area of TM law.
Moreover, this paper will also examine the possibility of any alternative ways other than TM law to protect such non-traditional signs, in case where they are denied registration and protection under TM law. Both in Europe and in US there is also the concept of Unfair Competition (UC) and Passing off for the UK, whose rules are generally more relaxed than the rules of TM law and they are capable of providing protection to unregistered signs, which however are generally well known.
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