New trademark legislation determines the conditions for creative brands

In AWA Blog

20 October, 2017

As of 1 October 2017, new rules for registration of EU trademarks apply. One significant change is the abolishment of the requirement of graphic representation of EU trademarks.

In an EU application, the trademark reproduction in any suitable form using publicly available technology will be accepted as long as the EU trademark can be reproduced in the register in a clear, accurate, comprehensible, lasting and objective manner so that the competent authorities and public can clearly determine what is protected by the registration.

Through this legislative change, the application process becomes more flexible and open to new technology means in respect of the representation of the trademark. The change is also intended to improve legal certainty for users and reduce the number of formal barriers to registration.

Various features such as product design, behaviour, look-and-feel, films, service level, etc., contribute to brand identity. An increasing number of such features may be perceived as having trademark character although not using conventional words, logos or other signs which can typically be graphically represented.

More and more unconventional features function as components in brand identities. It is good that the continuous development of technical means become available for use in representation of trademarks in applications, in particular, in respect of the less conventional aspects of brand building such as, for example, holograms, moving images, audio or three-dimensional brands.

Non-graphic representations of trademarks in applications will probably be used primarily by the consumer brand industries. So far, there hasn’t been sufficient technical means to reproduce fragrances graphically and, presently, it is probable no other technical means available can represent such marks clearly enough for fragrances to be registrable as trademarks. It will probably be technically difficult to reproduce fragrances in the near future, but when there are technical solutions available it will surely be very interesting for the perfume industry.

I think the abolishment of the requirement of graphic reproduction is something that may be interesting to evaluate at an early stage in the creative brand building and product design processes. Companies which allow IP lawyers to participate in this kind of processes often stand a better chance of securing legal protection and utilising IP in their business strategies. In addition, the chances of avoiding intrusion issues improve.

My hope is that the abolishment of the requirement for graphical representation in trademark registration procedures will encourage companies to involve us IP lawyers in the development phase and pave way to think outside the box as to which ‘brand features’ should be protected as well as which technical opportunities are available to secure the core values in corporate identity and market communication.

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