Ralf Sieckmann v Deutsches Patent- und Markenamt.
Date: 2002-12-12
22. The Court may of its own motion, on a proposal from the Advocate General or at the request of the parties order the reopening of the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C-271/97  Deutsche Post  [2000] ECR I-929, paragraph 30, and Case C-299/99  Philips  [2002] ECR I-5475, paragraph 20).
34. It should first be recalled that, as is stated in the 10th recital in the preamble to the Directive, the function of the protection afforded by a trade mark is in particular to guarantee the mark as an indication of origin.
35. It is also clear from the Court ' s case-law that the essential function of a trade mark is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him, without any possibility of confusion, to distinguish that product or service from others which have another origin and that, for the trade mark to be able to fulfil its essential role in the system of undistorted competition which the EC Treaty seeks to establish, it must offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality (see, in particular, Case C-349/95  Loendersloot  [1997] ECR I-6227, paragraphs 22 and 24; Case C-39/97  Canon  [1998] ECR I-5507, paragraph 28, and  Philips , paragraph 30).
36. The purpose of the Directive, as stated in the first and seventh recitals in the preamble thereto, is to approximate the trade mark laws at present applicable in the Member States and to make the conditions for obtaining and continuing to hold a registered trade mark identical in all Member States, in order to abolish disparities between those laws which may impede the free movement of goods and freedom to provide services and may distort competition within the common market.
39. Next, Article 2 of the Directive provides that a trade mark may consist of any sign, provided that it is, first, capable of being represented graphically and, second, capable of distinguishing the goods or services of one undertaking from those of other undertakings.
43. The purpose of Article 2 of the Directive is to define the types of signs of which a trade mark may co nsist. That provision states that a trade mark may consist of   " particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging ..." . Admittedly, it mentions only signs which are capable of being perceived visually, are two-dimensional or three-dimensional and can thus be represented by means of letters or written characters or by a picture.
44. However, as is clear from the language of both Article 2 of the Directive and the seventh recital in the preamble thereto, which refers to a   " list [of] examples"  of signs which may constitute a trade mark, that list is not exhaustive. Consequently, that provision, although it does not mention signs which are not in themselves capable of being perceived visually, such as odours, does not, however, expressly exclude them.
45. In those circumstances, Article 2 of the Directive must be interpreted as meaning that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically.
46. That graphic representation must enable the sign to be represented visually, particularly by means of images, lines or characters, so that it can be precisely identified.
47. Such an interpretation is required to allow for the sound operation of the trade mark registration system.
48. First, the function of the graphic representability requirement is, in particular, to define the mark itself in order to determine the precise subject of the protection afforded by the registered mark to its proprietor.
49. Next, the entry of the mark in a public register has the aim of making it accessible to the competent authorities and the public, particularly to economic operators.
50. On the one hand, the competent authorities must know with clarity and precision the nature of the signs of which a mark consists in order to be able to fulfil their obligations in relation to the prior examination of registration applications and to the publication and maintenance of an appropriate and precise register of trade marks.
51. On the other hand, economic operators must, with clarity and precision, be able to find out about registrations or applications for registration made by their current or potential competitors and thus to receive relevant information about the rights of third parties.
52. If the users of that register are to be able to determine the precise nature of a mark on the basis of its registration, its graphic representation in the register must be self-contained, easily accessible and intelligible.
53. Furthermore, in order to fulfil its role as a registered trade mark a sign must always be perceived unambiguously and in the same way so that the mark is guaranteed as an indication of origin. In the light of the duration of a mark ' s registration and the fact that, as the Directive provides, it can be renewed for varying periods, the representation must be durable.
54. Finally, the object of the representation is specifically to avoid any element of subjectivity in the process of identifying and perceiving the sign. Consequently, the means of graphic representation must be unequivocal and objective.
55. In the light of the foregoing observations, the answer to the first question must be that Article 2 of the Directive must be interpreted as meaning that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective.
The second question
70. In respect of the description of an odour, although it is graphic, it is not sufficiently clear, precise and objective.