In an increasingly competitive world, trademark owners are looking for innovative ways to market and protect their brands. Adopting and obtaining registered protection for nontraditional trademarks — including olfactory, sound, color and shape — can be an effective way for trademark owners to enhance the scope of their intellectual property rights. Olfactory trademarks have been accepted in at least two national trademark offices in the European Union.

However, obtaining registered protection at the Office for Harmonization in the Internal Market (OHIM) for such trademarks may prove challenging, as demonstrated by the recent European Court of First Instance (CFI) decision in Case T-305/04, Eden SARL v OHIM, [2005] EUECJ T-305/04 (27 Oct. 2005). This decision both reinforces established EU law that scents can be protected as trademarks, and highlights the inherent difficulties trademark owners face in graphically representing trademarks that are not visual by nature. This article will examine the treatment of the graphic representation requirement for olfactory trademarks by OHIM and the EU courts.

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