«(Trade marks – Approximation of laws – Directive 89/104/EEC – Article 2 – Signs of which a trade mark may consist – Signs capable of being represented graphically – Olfactory signs)»

Approximation of laws – Trade marks – Directive 89/104 – Signs capable of constituting a trade mark – Signs not capable of being perceived visually – Inclusion – Condition – Signs capable of being represented graphically – Olfactory signs (Council Directive 89/104, Art. 2) Article 2 of Directive 89/104 to approximate the laws of the Member States relating to trade marks 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. In respect of an olfactory sign, the requirements of graphic representability are not satisfied by a chemical formula, by a description in written words, by the deposit of an odour sample or by a combination of those elements.see paras 55, 73, operative part 1-2

JUDGMENT OF THE COURT 12 December 2002 (1)

((Trade marks – Approximation of laws – Directive 89/104/EEC – Article 2 – Signs of which a trade mark may consist – Signs capable of being represented graphically – Olfactory signs))

In Case C-273/00,

REFERENCE to the Court under Article 234 EC by the Bundespatentgericht (Germany) for a preliminary ruling in proceedings brought by

on the interpretation of Article 2 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, M. Wathelet, R. Schintgen, C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, V. Skouris, F. Macken (Rapporteur), N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Sieckmann and the Commission at the hearing on 2 October 2001,

after hearing the Opinion of the Advocate General at the sitting on 6 November 2001,

gives the following

Community legislation

....

National legislation

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundespatentgericht by order of 14 April 2000, hereby rules:

Rodríguez Iglesias

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Skouris

Macken

Colneric

Cunha Rodrigues

Delivered in open court in Luxembourg on 12 December 2002.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President