Trade Mark Protection for Smells, Tastes and Feels – Critical Analysis of Three Non-Visual Signs in the EU

Abstract This article focuses on the ability to protect three non-traditional signs as trade marks in EU: smell (olfactory marks), taste (gustatory marks) and feel (tactile marks). All types of subject matter can meet definition a sign. According majority view literature practice, none currently be represented register with sufficient clarity precision, however. It is argued that veracity finding essentially boils down lack vocabulary IT solutions, it depends level detail expected from non-visual signs. Theoretically, distinctiveness less an obstacle protection. Although some need acquire through use, should assessed case-by-case basis cannot excluded there are smells, tastes feels inherently distinct. In authorities seem uphold excessive thresholds for olfactory, gustatory, especially tactile marks. understandable light their potential scope, which lies at heart debate eligibility Indeed, granting protection these carries risk depleting propertising almost anything. this might true, contended more research needed no legislative Freihaltebedürfnis (need keep freely available) respect. After considering fundamental rights public policy alternative means channelling concern, concludes EU legislator evaluate whether exclude certain mark law.