On 16 December 2015, the new Regulation 2015/2424 of the European Parliament and of the Council came into effect.
The Regulation, and the corresponding Directive (2015/2436), inter alia deal with the question what kind of signs an EU trademark may consist of. This part of the Regulation will however only come into effect on 1 October 2017.
In the preamble to the Regulation (sec 9) it is stated that in order to allow more flexibility, while also ensuring greater legal certainty with regard to the means of representation of trademarks, the requirement of graphic representability should be deleted from the definition of the EU trademark. A sign should be permitted in any appropriate form using generally available technology, and thus not necessarily by graphic means, as long as the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective.
The above mentioned requirements are a codification of the Sieckmann case (C-273/00) in which the requirements were established by the CJEU. However, in the Sieckmann case a graphical presentation was still a requirement in addition to the above mentioned requirements.
Although the list is not exhaustive, the Regulation now explicitly (which the regulation (207/2009) did not) mentions inter alia also colours and sounds. Other possible trademarks could for instance consist of holograms or motion (moving pictures).
Hence, from the autumn of 2017 it will no longer be necessary to question if a trademark could be presented graphically as longs as the requirements mentioned above are met.
Will this make it easier to protect unusual trademarks than it is to protect e.g. word and figurative trademarks?
In some cases it will be easier. It will be easier to register motion, e.g. like the Lamborghini doors. 
This would probably have been clearer in motion.
In other cases, like for instance regarding scents, olfactory signs will most likely still be difficult to protect unless the technique to storage scents in a “clear” and “precise” way is developed. This would also be the case regarding taste marks.
For the sake of clarity, even though it is no longer necessary, it might still be useful to also file a stave (musical notation) when you file a sound recording. The combination could make the mark easier to evaluate for a third party.
Conclusions
In some cases it will be easier to file certain marks without the need for graphical presentation, e.g. motion or sound.
In other cases, e.g. olfactory or taste marks, it will still in the short perspective be difficult to meet the requirements of the Regulation with today’s technique. But who knows what kind of technical developments that lies ahead?
Many of the non-traditional trademarks are already possible to register due to established case law – e.g. the above mentioned Sieckmann case or Shield MARK (c-283/01).
Hence, the immediate impact on the possibility might not be that big in the short run. But with further developments in the technical field it might have a greater impact in the future.
Peter Hermansson, Attorney at Law
