Hologram mark rejected for failure to meet Sieckmann criteria

Sweden
The Swedish Supreme Administrative Court has dismissed SmithKline Beecham plc's appeal in a case involving a hologram mark.

In 1997 SmithKline filed an application for the registration of a hologram mark for goods in Classes 3 and 21 of the Nice Classification. The application contained a picture of the mark, which was represented as a number of geometrical figures within a black rectangular frame. The mark was also described as a hologram in the form of a kaleidoscopical image that changed colours depending on the light.

The Swedish Patent and Registration Office refused to register the mark, stating that a hologram cannot usually be represented graphically because of its changing appearance. Furthermore, the scope of protection of the mark could not be clearly defined by the description of the mark.

On appeal, the Court of Patent Appeals held that a hologram can be registered as a trademark, provided that it is capable of being represented graphically. The court referred to the decision of the European Court of Justice (ECJ) in Sieckmann (Case C-273/00), in which it was held that a graphic representation should be clear, precise, self-contained, easily accessible, intelligible, durable and objective. According to the Court of Patent Appeals, the ECJ’s findings with regard to the graphic representation of olfactory marks were relevant in relation to hologram marks.

Further, the court stated that a hologram consists of the three-dimensional image of an object, and that the image changes depending on the light. Each image can thus be represented graphically if the hologram is shown from different angles. However, SmithKline's application contained a graphic representation of only one of the images included in the mark. Therefore, the graphic representation did not fulfil all the criteria set forth in Sieckmann, either by itself or in combination with the description. Consequently, the mark could not be registered.

SmithKline appealed to the Supreme Administrative Court, which upheld the Court of Patent Appeal’s judgment. The case thus came to an end 13 years after the date of application.

Tom Kronhöffer and Jennie Nilsson, MAQS Law Firm, Stockholm

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