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|Title:||Chemical sense marks - Expanding the boundaries of registrability frequent concerns when applying for registration at the office for harmonisation in the internal market (trade marks and designs) (OHIM)|
|Keywords:||Function of trade marks;History of trade marks;Shell marks;Graphical representation;Distinctiveness|
|Abstract:||The harmonisation of the European Trade Mark laws and the introduction of unconventional marks under this regime have encouraged interested parties to seek registration of chemical senses (scent and taste) as trade marks. This thesis studies the current state of affairs of these types of marks. It discusses in general, the panorama that these types of marks have when registrability is at issue. The purpose of this research is therefore to scrutinise the trade mark legal system, including a discussion of the origins and rationale underlying it, to try to understand the burdens presented when registering chemical sense marks. The starting point of this thesis is that the European Regulation and the Directive of the Trade Mark law open the door to the protection of chemical senses under the Trade Mark law regime. Yet, despite some early successful registration, their fate is still burdened with uncertainty and therefore the rationale for this study is to try to find whether chemical sense marks are truly marks and therefore protectable under the trade mark system. The approach chosen addresses the examination of all requirements for a sign to be protected under the trade mark system. The reason is that protection of chemical senses might be granted if such marks are recognised as signs, are graphically represented and are capable of distinguishing products of one undertaking from those of another undertaking. By examining the aforementioned requirements, the study reveals that while chemical senses marks might be seen as marks, they find that registration is not quite feasible. The thesis emphasises that graphic representation is only one of the many issues that chemical sense marks are confronted with. Issues such as distinctiveness, the need to keep free and functionality remain problematic. Moreover, the scope of protection afforded to chemical sense marks are yet untested. Case law will ascertain that the intent behind the trade mark regime to grant registration to chemical senses is unresolved. Still, the significant interest in chemical senses as trade marks appears to be not softening by this notion.|
|Description:||This thesis was submitted for the degree of Doctor of Philosophy and awarded by Brunel University on 14/10/2010.|
|Appears in Collections:||Law|
Dept of Politics, History and Law Theses
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