Court refuses to register "smell of candied almonds"

The Federal Administrative Court has refused to register the "smell of candied almonds" as a trademark.

The applicant sought to register the "smell of candied almonds" for jewellery and watches in Class 14 of the Nice Classification. The Swiss Federal Institute of Intellectual Property (IGE) refused, noting that the description of a smell is insufficiently clear for the purposes of trademark registration. The IGE referred to the decision of the Court of Justice of the European Union in Sieckmann (Case C-273/00).

The applicant then amended the application and included a detailed recipe, specifying the type, quality and quantity of each ingredient and giving step-by-step instructions as to how to prepare candied almonds. The applicant defined the trademark as the smell at the end of the cooking process in a 12-square-metre kitchen with tiled floor and stainless steel plumbing, with the window closed and no ventilation. 

Both the IGE and the Federal Administrative Court held that the smell was still insufficiently defined, because temperatures in the pan could vary, mineral traces in the water might change the smell, and the skill of the cook was a subjective element that could not be standardised.

The lesson to be learnt from the decision is: the IGE and the courts are very reluctant to register smell marks. Their repeated insistence that "there is no known method for describing a smell graphically" does not change the fact that a detailed cooking recipe with so few ingredients (ie, almonds, water, sugar, vanilla extract and cinnamon) and a well-known process (caramelisation) will result in a smell that is, for all practical purposes, consistent. After all, one might argue that any depiction of a trademark is an abstraction, whether it be a word mark, a shape mark, a colour mark or any other type of mark.

The decision may be appealed to the Supreme Court, but this is unlikely.

Mark Schweizer, meyerlustenberger, Zurich 

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